
Qass. 
Book. 






<tX. 



^Z.-^T^ 



(h^ 



\1- 



Cl]^ €astent llomikiri) of ^eto fmej). 



^. 



A REVIEW 



OF THE 



HON. JOHN COCHRANE'S PAPER 



ON THE 



J-ff^ 



WATERS OF N'EW JERSEY, 



Read before the Historical Society of New York : 



AND A REJOINDER TO THE REPLY 



"A MEMBER OF THE NEW YORK HISTORICAL SOCIETY:" 



WILLIAM A. WHITEHEAD. 



NEWARK, N. J.: 

PRENTED AT THE DAILY ADVERTISER OFFICE. 



186 6. 



^ 



^ 



>s 



> 



€\}t €asterit louniarji of leto ^txBt^. 



A. 



REVIEW OF A PAPER 



WATEES OF NEW JERSEY, 



I 

Read before the Historical Society of New York, 



BY THE HON. JOHN COCHRANE, 

(Attorney-General of that State,) 

AND A REJOINDER TO THE REPLY 



"A MEMBER OF THE NEW YORK HISTORICAL SOCIETY," 



BY 



WILLIAM A. WHITEHEAD. 




REPRINTED AT THE REQUEST OF THE N. J. HISTORICAL SOCIETY- 



NEWARK, N. J.: 
PRINTED AT THE DAILY ADVERTISER OFFICE. 



1866 




•^Kinicovr^co. 1 1 1 h ^a uelhman sr.tv 



*** The following articles were oriffinally printed in the "Tonkers (N. Y.) 
Gazette," Mr. Cochrane haying given publicity to his views through the 
columns of that paper. 

Their appearance, of necessity, in several weekly instalments, and with a 
considerable period intervening between the two, rendered some repetition 
of facts and authorities necessary, which under other circumstances might 
have been avoided, and prevented the treatment of the subjects involved in a 
more systematic manner. 

They are now reprinted, at the request of the New Jersey Historical Society, 

as originally written, excepting verbal corrections and the introduction of 

notes and authorities. 

W. A. W 



:Et E^^I E"W" 



There are some questions wliicli, however thoroughly discussed and 
definitely settled, will "ever and anon" be evoked from a sleep of years 
by enquiring, mercurial spirits, with a demand for 'a re-discussion and a 
re-settlement, although nothing may have occurred while they have lain 
dormant to warrant the procedure — although no new light may have 
arisen to illumine what was before dark, or any good purpose be effected 
by their revival. For a time, factitious circumstances may infuse into a 
question of this kind, some semblance of vitality and importance ; but, 
however potent may be the influence of Error, or however protean the 
forms it may assume, if Truth has been ever elicited, the lookers-on may 
quietly await the issue, confident that the vexed question, ere long, will 
be restored to its wonted state of repose. 

Such is the character, such the present position, and such the ultimate 
fate of the question which was made' the subject of extended comment, 
by the Hon. Mr. CocnRANE, in a paper read at a meeting of the New 
York Historical Society, in June, 1865. 

Nothing has occurred rendering it advisable to change the present 
mutual l:)oundaries of, or to disturb the friendly relations existing be- 
tween, the States of New York and New Jersey ; no new infomiation of 
essential imiJortance afiecting the points formerly at issue, has been 
gathered ; and only the fact that, a high law officer, connected with the 
Executive Dei^artment of the State of New York, has revived the topic, 
and given his views respecting it, publicity — not only by their presenta- 
tion to such a distinguished body as the New York Historical Society, 
but by printing them in full over his own name — gives to it a temporary 
interest. It is the. intention of this review to facilitate the return of the 
snbject to the shades whence it was drawn. 

The theme which Mr. Cochrane gravely propounded, and which he so 
elaborately discussed, Avas the assertion " That the waters between 
" Staten Island and New Jersey, the Kill Van Coll, the Sound and 
" Raritan Bay, or by whatever other baptismal names they or 



4 EASTERN BOUNDARY OF NEW JERSEY. 

"their parts may HAVE BEEN, OR ARE NOW DESIGNATED, TOGETHER 
'WITH ALL THE WATERS WHICH LAVE StATEN IsLAND SHORES, WERE FROM 
"the period op their discovery, known and ACCEPTED, AND SHOULD 
" PROPERLY NOW BE CONSIDERED, THE WATERS OF HuDSON'S RiVER."* 

The proposition is a simple one, and its operation, if established, 
equally so : the aim and effect of the learned gentleman's paper l^eing, to 
cut oif New Jersey from any water privileges, excepting such as she may 
enjoy on her ocean-beat coast, or in Delaware bay, and place her a sup- 
pliant at the feet of New York, for permission to enjoy, in quietude, the 
rights which she derives from the same source that conferred upon her 
larger and more opulent sister State, the germs of her prosperity. 

Mr. Cochrane is met at the threshold of his investigation by certain 
"baptismal names" borne by the waters referred to, which he conceives 
to have been imposed "by accumulating ignorance or design ;''"' and seems 
to imagine that, the generations past and gone, possessed neither eyes to 
perceive where physical peculiarities required the conferment of sjDecial 
appellations, nor judgment to determine what those appellations should 
be : his own acquaintance with the localities, and his own experience in 
navigating these " falsely " named waters, especially qualifying him to 
succeed where they so signally failed. 

In order that his jDOsitions may be fairly and fully presented, the fol- 
lowing extract from his paper is given at length : 

" "When Hudson, carefully consulting his soundings, ' Avent in past 
Sandy Hook' on the evening of the 3rd of September, 1609, he moored 
the Half Moon in ' The Bay.' A boat's crew j^roceeding upward to the 



* Elsewhere in his paper, Mr. Cochrane all the waters which surround Staten Island 

presents the same proposition in other Ian- are the waters of the Hudson River, stands 

guage, but of similar import, thus : substantiated by abundant proof." 

" The denwnstratmi that the wafers of And again : ' 

the Hudson, in their seaward current, de- " ' The narrow river to the westward,' 

bouch through both the Narrows and the and ' the I^arrows ' at the south, the mouths 

Kills, would not only have exposed the through ivhich the waters of the Hudson dis- 

futility of New Jersey's pretensions to charge themselves through the Great Bay 

Staten Island, but have eflfectually disposed into the main sea." 

of her commercial rivalry with New York." And again : 

And again : " That mouth of the Hudson which through 

" I have now concluded the detail of the the Kills discharges its waters into " the 

earlier historical evidence, which directs un- Great Bay." 

equivocally to the conclusion, that the Hud- It has been thought proper thus to quote 

son River empties itself, through its two Mr. Cochrane, as it has been asserted that 

7rwuths, the Narrows and the Kills, into the proposition he discussed was announc- 

the Bay of New York, which flows past ed only in the language of the text, and 

Sandy Hook into the sea." the writer has been accused of misrejire- 

And again : senting him when quoting some of his own 

" I may now, I trust, be permitted to sentences as above given, 
think that the proposition submitted, that 



EASTERN BOUNDAUY OP NEW JERSEY. 5 

north, on a subsequent day, (September Gtli,) we are told that they passed 
through the Narrows, into a commodious harbor, ' with very good riding 
for Ships.' In their furtlier progress nortliward, they discovered the 
Kills in ' a narrow river to the Westward betweene two Hands.' The 
exploration of this riuer disclosed to them ' an open Sea,' now called 
Newark Bay. When the Half Moon first left her anchorage in ' The 
Bay,' (September 11,) Hudson cautiously passed through the Narrows, 
went into the Riuer,' and again found moorage near the mouth of the 
Kills, in ' a very good Harbour for all windes.' 

"This simple statement of Hudson's discovery, purges effectually the 
clouded medium of subsequently distorted narrative ; and our mental 
vision has direct access to ' the bay,' the ' harbor,' the ' western river,' 
and ' the oijen sea,' imperverted into unnatural lineaments by the false 
names imjjosed by accumulating ignorance or design ; and representing 
them as they lay, and as unchanged they lie, in physical aspect, the only 
distinguishable ' bay ' below, the ' narrow straits ' above, the estuary, 
roadstead, or ' harbor ' within, ' the river ' completing the tijiiier icaters to 
tlie west, and beyond that, the 'open sea' in the distance. If now we 
apply to this fluvial system, the nomenclature adapted to it by the proper 
names since borne l)y the river which originated it and the ports on its 
banks, ' the bay ' becomes the Great Bay of the North River ; ' the Har- 
bour,' the Harbor or Port of New York ; and ' the narrow river to the 
westward' and 'the narrows' at the south, the mouths through which the 
waters of the Hudson discharged themselves through the Great Bay into the 
main sea. 

"Here, then, is jn'obably the most fitting place for the remark, that the 
confirmation of this hypothesis will be the explosion of the injurious 
theory upon which the Treaty of 1834 ceded to New Jersey one-half of 
the rights of New York to the waters of the Hudson, and of those which 
separate Staten Island from New Jersey, together with the lands under 
them, upon the very common error of mistaking the harbor of New York 
for the bay of New York, and of imposmg the name of Raritan Baj^ on a 
portiqn of the waters of the Great Bay of the North River." 

The reader will j)lease notice that Mr. Cochrane's " Great Bay of the 
North River" is simply "the bay" of Hudson and other navigators; and 
as such it will he considered. 

On proceeding to advance his proofs applying to his hypothesis, he 
places prominently among them, and relies greatly upon, the testimony 
afforded by Maps ; but it is a singular fact that not one, ancient or modem, 
confers upon "the l^ay" any cognomen conveying the idea that its waters 
are sufficiently homogeneous with those of the North River to authorize 
the adojition of the restricted appellation suggested by the Attorney- 
General. 

•The earliest geograjihers on their earliest maps — those quoted by Mr. 



b EASTEKN BOUNDARY OF NKW JERSEY. 

Cochrane — leave it unnamed, as being simply an arm or portion of the 
Atlantic Ocean : or when they do give it a specific appellation, designate 
it as "Sand Bay," "Port May," or " Godyn's Bay," or "Coenraefs Bay," 
not recognizing its relation to the North River. But these specific names 
soon disappeared ; and the common sense of each and every generation 
since, has been in entire accordance with the present nomenclature, which 
is warranted hj the physical ijeculiarities and configuration of the shores 
and shoals; as a general appellation to the whole expanse of the waters 
referred to, would be necessarily indefinite and consequently inappropriate. 
Convenience, projiriety, and fact coincide in designating the waters to 
the west of the peninsula of Sandy Hook as those of " Sandy Hook Bay ;" 
in considering those immediately south of the Narrows, as constituting 
" the lower bay," in contradistinction to the one above ; aud those waters 
lying south of Staten Island, received from the Raritan River ami Staten 
Island Sound, as "Raritan Bay." It is not usual to claim for this last a 
more extended locality than it is strictly entitled to. It is not made to 
encroach on "the lower bay;" but, in conjunction with "Sandy Hook 
bay," laves the shores of New Jersey and Staten Island ; and contributes 
its quota to the ocean, through the Main Channel at Sandy Hook. 

It is a noticeable circumstance that 'Mi: Cochrane considers those maps 
which leave this exjDanse of water without a name, as substantiating its 
claim to the title he suggests, no matter what may have been the 
definite object had in view by their projectors. For example, he draws 
attention to a Map in ''East Jersey iinder the Proprietors,'''' and says, "it 
" confines the name of Raritan to the river noAV known as such, but 
"represents none for the waters from its mouth to Sandy Hook;" and 
he styles it " a Map of the settled portion of New Jersey, lirojected and 
'■'•described in the year 1682;" adding, "the map of 1683 tlm?, singidarly 
" con^zirs with the patent of 1665, \^The Monmouth Patent,] in protecting 
" ' the bay ' from the infectious waters of the Raritan." 

Now the author of the work referred to expressly states {2"'9'^ ^'^'^) 
that the maii '■' was comjiiled [for his icorh, jnMished in 184:Q,] from vari- 
'•'•ous sources'''' — for what ? To " give the reader an idea of the extent of 
" the settled portion of the Province,'''' in 1683. That was its purport, nothing 
more. If he had entertained the remotest idea that his map would have 
been referred to, to jjrove the non-existence of Raritan Bay, because of 
his omission to insert these words, it may be safely assumed that they 
would have been there. The Attorney-General should award him credit 
for not being influenced in the preparation of his maj), "by the cor- 

"ruptions of the mother tongue" to which he alludes in hispajier.* 

• 

♦"Evidence," says Mr. Cochrane, "may be multiplied till the truth becomes con- 



EASTERN BOUNDARY OF NEW JERSEY. ' 

To strengthen his position, Mr. Cochrane gives two extracts, which 
connect with "the Bay" the adjuncts which he coyets. 

Cornelius Van Tieuhoven,- Secretary of the Province of New Nether- 
land, speaks of it in 1650, as " the Bay of the North River ;" and the 
Patroon Melyss purchased from the Lidians, the same year, some lands 
"at the south side, in the. Bay of the North River;'' and with a little 
more research some few like instances might have been discovered ; but 
it is safe to assume that in all such instances the appellation was not 
intended to partake of the exclusive character which Mi\ Cochrane 
would give it. Thus, for example — and one example will suffice, although 
others might be furnished — De Razieres, in his letter to Blommaert, says, 
" I arrived before the Bay of the great Mauritze River, sailing into it 
" about a musket shot from Godyn's Point into Coenraefs Bay, where the 
"greatest depth of water is," etc.,* recognizing the existence among 
navigators at that early period of a specific appellation for a portion of 
"the Bay;" and it is a noticeable circumstance that De Vrics, who 
prol)a1:)ly went in and out of " the Bay " a greater number of times than 
any other navigator, during the domination of the Dutch, never conferred 
upon it a title connecting it exclusively ^vith the North, or Hudson's 
River. 

But is there anything remarkable that a great river should not carry 
its name witli it to the ocean ? There are many streams along our coast 
which, after placidly meandeiing through the country, conferring beauty 
upon the landscape and bestowing beneficent gifts upon the inhabitants, 
seem to decline having their names identified with the rougher and 
world-tossed waters of the ocean. The cases are too numerous to admit 
of the conjecture, that the failure of the stream of the Hudson to carry its 
name to Sandy Hook is an exception originating in " ignorance or de- 
sign." Does it not argue some weakness in the positive proofs that they 
are identical, to insist so strenuously upon revising the present nomen- 
clature, in order to identify the waters of " the Bay " with those of the 
river ? 

But it is essential to Mr. Cochrane's theory that he should establish 



spicuous, that the baptism of " the Bay " was ?io< given to the world in 1682, John 

never was conferred on any other portion Reid's map, which will he noticed on a 

of the waters of the Hudson, [than the subsequent page, tvas issved about 16S3, 

lower bay] till the habitual corruptions of and on that the waters south of Staten 

the ^'ulgar tongue enticed and betrayed an Island are designated " part of Raritan 

intelligent community into the injurious Bay." 

conversion of a roadstead or estuary of the * Collections New York Historical Socie- 

sea into the Upper Bay of New York." ty, Second Series, ii, 342. 
Although the map referred to in the text 



8 EASTERN BOXJNDARY OP NEW JERSEY* 

the point ; and the greater part of his paper is devoted to its develdji- 
ment and iUustration ; the applicability of his quotations, in a simple 
historical enquiry, not being always apparent. He quotes Governor 
Dougan, who says " We, in this government^ [New York] look upon that 
" Bay, that runs into the sea at Sandy Hook to he Hudson River.'''' This 
was in 1686 — in a letter, by the way, which, for its partizan antagonism 
to the Proprietors of New Jersey, jDrobably led to his recall by the Duke 
of York, whose interests he was trjing to subserve* — and it seems that 
in 1865 there are some in " this government " equally blind to the distinct- 
ion between the bay and the river. 

Mr. CocHRAJSTE also quotes two other documents, one, . a Report upon 
the controversy respecting the commercial privileges of the Port of Am- 
boy, in 1697 ;t and the other, a letter from an Engineer, who responds to 
the dictation of his superior by reporting the depth of the water " in the 
" other branch of the Hudson river," called "the Col," in 1701 ; both of 
a character similar to that of Governor Dongan's letter, equivalent to as- 
sertions of claims yet unestablished ; and about as conclusive as proofs, as 
would be the counter assertions of the Governor and Proprietors of East 
Jersey, or as the assertions, current some time since, that the new Fire 
Department Law of New York was unconstitutional, or the right of a 
State to secede was unquestionable — the Port question having been sub- 
sequently settled adversely to the claims of tJie New Yorh authorities, as 
the last two opinions have been effectually disjjosed of contrary to the 
washes of those who advocated them.| 

Mr. Cochrane considers the " impregnability " of his record evidence 
confirmed by the " testimony of the ancient Maps; " but an impartial en- 
quirer will soon have reason to be satisfied that their testimony is of little 
velue. 

He says of the celebrated " Carte Figurative,'''' § " However imperfect 
" the delineations, this map represents unmistakably the River Mauritius 
" (now Hudson) as it> washes the margin of Manhates Island, and, en- 
" larging thence its course to tlie ocean, swells into an expansive Bay, which 
'■'■encloses Staten Island, and ultimately passes at 'Sand punt,' into the 
"main sea." 

This is a correct descrijition of the map ; and similar delineations in 
other maps — the swelling " into an expansive Bay," enclosing Staten Is- 



* Chalmer's Political Aunalg, p. C28. only asset'/edhnt argued that it was uncon- 

t Respecting this controversy more will stitutional ; but the Courts, nevertheless, 

be found in subsequent pages. decided otherwise. 

t As to the Fire Department Law, a pro- § N. Y. Col. Doc. i., 13. 

minent legal gentleman of New York, not 



EASTERN BOUNDARY OF NEW JERSEY. » 

land— showing as much water on the west side of tlic island as on the 
east, afford a clew to the authority upon which some of the writers of the 
time describe the locality, the knowledge of most of the parties being 
derived solely from the imperfect topographical details of these maps. 
But this* very " Carte Figurative " of date 1616, ignores Mr. Cochrane's 
theory, by giving the name of "Sand Bay" to the expanded sheet of 
water M'hich, he would have us believe, the " accumulating ignorance " 
of modern times, and the "corruptions of the mother tongue"' prevent 
being called "the Bay of the North River.'" 

This same title of " Sand-lxiy,"' is similarly used elsewhere, and so ap- 
plied, will l)e found also on Jacobsz Map of " Americae SeptentrionaUs " 
of 1621, in the possession of Dr. O'Callaghan; a, fac simile of which will 
be found in the same volume of the New York Colonial Documents that 
contains the " Carte Figurative.'''' 

The description given by Ogilby (which appeared simultaneously with 
that of Montanus, from which Mr. Cochrane quotes through a modern 
translation,) was evidently based upon the map of " Nova Belgii Quod 
nunc Novi JorTc vacatur^ c&c," contained in his ponderous volume. As it 
is somewhat uncertain whether Montanus coijied Ogilby, or Ogilby Mon- 
tanus, the extract is here given as it appears in the contemporaneous En- 
glish — " The Manhattans, or Great River, being the chiefest, having with 
" two Avide Mouths washed the mighty Island Watouwaks, ttills into the 
" Ocean. The Southern Mouth is called Port Mai/, or Oodyits Bay. In 
" the middle thereof lies an Island called the States Island, and a little 
"higher the Manhattan," &c.* Now Ogilliy's map was derived from Vis-* 
cher's and Vander Donck's, which place Staten Island in the centre of an 
expanded bay — having its specific title it will be observed — forming wliat 
Ogilby calls the " Southern Mouth " of the Great River, the other, or 
northern inouth, being Long Island Sound : " Watoiiwaks," or more pro- 
perly Matouioacs being the designation of Long Island, whose shores were 
thus washed. Why does not Mr. Cochrane furnish a new title for Long 
Island Sound ? The testimony of Montanus and Ogilby is as potent and 
applicable in that direction as in the other. 

It will be perceived, therefore, that it is neither philosophic nor wise to 
base arguments upon descriptions framed from delineations acknowledged 
by Mr. Cochrane himself, to Ijc rude and imperfect. If maps of this 
character are reliable as evidence, he might claim with equal propriety 
that the Hudson has three mouths, and refer for proof to Vander Donck's 
map, which makes a stream, which is called the " Groote Esopus River," 

* Ogilby's America, Edit, folio, 1671, p. 170. 

2 



10 EAStERN BOUNDARY OV KEW JERSEY. 

to connect with the Delaware, affording another outlet for the waters of 
the Hudson. He might thus have received into its capacious bay not 
only Staten Island, but the whole of New Jersey. 

But it is unnecessary to pursue this portion of Mr. Cochrane's argu- 
ment further ; indeed in view of one physical fact which will be educed 
presently, it need not have been discussed at all ; but, before proceeding, 
some notice must be taken of his labored endeavor to make the appella- 
tion, " Achter Col," given to Newark Bay, derives its significance from 
its lying back or west of the bay on the east side of Staten Island, rather 
than from its relation to what is known as the upper bay or harbor of 
New York.* 

The meaning of the words is w^ell understood to be Behind or Back of 
the Bay ; and the bay meant, would seem to be at once made manifest by 
the inquiry, " Where did the people live who used the term ?" There 
was a perfect propriety in the dwellers upon Manhattan Island conferring 
the title upon a sheet of water wiiich lay lehind or heyond the lay which 
intermned letweeii it ami them; but the appellation would have possessed 
neither significance nor appropriateness, had it been derived from the po- 
sition of the inner expanse of water with reference to the lower bay, as it 
did 7wt lay back of, or beyond, that bay to them, but in an entirely differ- 
ent direction. 

It is somewhat remarkable that Mr. Cocurane should quote Mr. Brod- 
head in support of his views and "to complete " his proofs. That historio- 
grapher sayst '"Achter Cul,' or 'Achter Kol,' now called 'Newark Bay,' 
•" was so named by the Dutch, because it was 'achter,' or 'behind' the 
" Great Bay of the North River. The 2Mssaffe to the Great Bay was 
" hioion as the Kill van Cul," from which has been derived the present 
"name of "the Kills," — and he quotes Benson as his authority. Both 
writers evidently intended by " the Great Bay of the North River," the 
bay north of Staten Island: for "the Narrows," mt "the Kills," are un- 
questionaljly the passage to the lower lay, which Mr. Cochrane wishes to 
have considered the " Great Bay."| 



* Mr. Cochrane says, " Achter Cull," the New York, if the uninterrupted current of 

early designation of Newark Bay, was read- authority attributes, as we have seen that 

ily and naturally rendered into the " After it does, the " Kill van Cull," or " the River 

Bay " of the English, relatively to its posi- of the Bay," to that mouth of the Hudson 

tion behind the upper Bay of New York. which, through the Kills, discharges its wa- 

Bnt the term "Achter." or After, was pre- tersinto " The Great Bay,'' then will we 

dicated only of localities in the interior and have no difficulty in determining that the 

behind those bordering on the sea coast; "Achter Cull" was named from its posi- 

»nd, while redressing the prevailing error tion " behind " the same " Great Bay." 

which, generally, has referred the significa- tBrodhead's, N. Y., 1, p. 313. 

tion of the Dutch Kills to their relation to t Mr. Benson, who was one of the New 

either Newark Bay or to an upper Bay of York Commissioners for arranging the 



EASTERN BOIINDARY OP NEW JERSEY. 11 

"AchterCol" from being first applied to the water only, gradually, 
as population spread and settlements began to be formed on the shores 
of Newark Bay, became the appellation for the land also, both northward 
and southward, iintil the whole of East Jersey would occasionally be 
designated as " Achter Col ;" but the name, under the English rule, was 
soon lost; and the studenjt of the geography of the State would scarcely 
recognize in the name of " Arthur Kull," applied to the Sound between 
Staten Island and the main, south of Newark Bay, all that is preserved 
of the original appellation of " Achter "Col." North of the bay and 
running into New York bay, the stream still retains the appellation con- 
ferred at the same early period, the " Kill van Kull," or more commonly 
"the Kills," as stated by Mr. Broclhead. 

It is susceptible of demonstration from documentary evidence, that the 
specific appellations borne by the waters referred to are not of modern 
introduction, are not the result of " corruptions of the Mother tongue ;" 
have not originated through " accumulating ignorance" or through any 
nefarious "design" to absorb the Hudson, but are simply appropriate 
titles which the physical configuration and i^osition of the localities have 
rendered necessary. They date back, for the most part, and particularly 
is it the case with the nomenclature of the waters west of Staten Island, 
to times anterior to the transfer of New Netherland to the English,* and 
it is safe to affirm, that no one, acquainted with the localities, would ven- 
ture to express the opinion that such a specific nomenclature should give 
place to the general appellation of "Hudson's River;" for, as has been 
intimated already, if it had not been thought advisable to show how 

Boundary, iu 1S07, had, as we shall see, so tions. Vol, l,p. 177, from Albany Sec&i'ds.) 
little idea'of considering the waters west The " Kil van Kol " was so well known, 
of Staten Island to be part of Hudson that the people of Connecticut, the same 
Kiver, that in his discussions with the year, when preparing for a settlement in 
New Jersey Commissioners he labored to New Jersey, allude to it by name, 
establish that they formed " an arm of the In 1C64, the Indians sold the Elizabeth 
sea." tract to Bailey. Denton and Watson, the 
* The " Calendar of Historical Manu- boundary on the east being " the River 
scripts" in the office of the Secretary of which parts Staten Island and the Maine" 
State at Albany (pj). 100, 250, 273, 375, 301 :) —and Governor Nicolls, when confirming 
the '' Calendar of Land Papers," (pp. 15, the grant, calls it " the sea which parts 
37, 44, 45,) and the New Jersey Proprietary Staten Island and the Main," and he par- 
Records furnish abundant evidence of these ticularly discriminates in one document 
specific appellations in grants anterior to the between the Kil van Kol and Hudson River, 
conquest of the English; and subsequent In 1C(J9 the Charter of Woodbridge make^ 
to that event the instances are still more the eastern boundary of the tract " Arther 
frequent. Dec, 1663, Capt. Krygier, in a Cull River, otherwise called the Sound." 
voyage to Newesing, " sail'd through the Gov. Andros calls the Kil van Koll " After 
Kil van Kol:" "rowed down with the ebb Cull River," and the Sound "the Great 
the Kil behind Staten Island"—" went Kill ;" and so, on down to the present 
down the bay" and sailed "again towards time, have these appellations continued to 
the Manhattans" — thus circumnavigating be used, 
Staten Island. (N'. J. Hist. Soc. Collec- 



12 KASTEEN B0tnsT5ARY OF NEW JERSEY. 

little foundation there was for Mr. Cochrane's theory, even as presented, 
with his chosen authorities, the statement of one single i^hysical fact 
would have sufficed to refute his arguments.. 

Mr. Cochrane is a military as well as a legal General. Let it be sup- 
posed that, with the skilfully trained eye of an experienced commander, 
he has selected a bold and adventurous detachment from among the 
watery hosts of the Hudson, and having placed himself at its head, he 
floats off with a strong ebb tide on an expedition to explore the new 
mouth of the river that he has discovered. On approaching "the Kills" 
his detachment is confronted and most unceremoniously jostled, turned 
around, impeded and opposed l)y a concourse of wateryj»articles, veiy 
similar to those composing his more regular organization, but 2^ursuing a 
directly contrary course. On inquiring into the cause of this rough treat- 
ment, the General is informed that he has wandered beyond the lines of 
the hosts of the Hudson, and is in collision with the advanced guard of 
the conjoined forces of the Passaic and the Hackensack, coming from the 
Blue Hills of New Jersey, and proceeding with all speed and irresistible 
velocity to a general rendezvous at Sandy Hook. 

Finding all endeavors at progress in that direction useless, the north 
comer of the new mouth being effectually closed against him, the Gen- 
eral proceeds, we will suppose, to execute a flank movement ; if he can- 
not get in at the north, he may through the south comer ; so falling in 
with the advancing columns of the Passaic and Hackensack, he takes 
his detachment with them into the lower bay, and watching his oppor- 
tunity, lie joins some returning battalions wending their way westward 
toward the southern end of Staten Island. By skilful management he 
prevents any of his Ibrce from being sent ofi" \\\\\\ a scouting* party up 
the Raritan, and is congratulating himself that, liy continuing with the 
main l)ody, proceeding northward through the Sound, he is making rapid 
progi-ess up the Hudson, when, lo ! he finds that he and his detachment 
are being moved bodily to the westward into Achter Col Bay. Again 
he resorts to strategy. Succeeding in getting off the direct line of jiro- 
gress, he stealthily conducts his detachment to the right into slack water, 
and moves onward for awhile. Soon, however, is he interrupted and 
opposed by an overwhelming force that ridicules any attempt by his 
puny detachment to advance in that direction, and he finds himself and 
his command a1)sorbed and carried off" to rejoin the column they had 
sought to escape from — victims to the grasping propensities of New 
Jersey. 

Did General Cochrane ever know of a mouth of a river through which 
some 2>ortion of its stream did not run in one continuous ebb and flow of 



EASTERH BOUOT)ABY OF NEW JERSEY. 18 

tide? But what the tides ot " the Kills," " the Sound " and " Raritan 
bay " refuse to do for the Hudson, they do regularly, each and every day, 
for the Passaic and the Hackensack. In other words, " the Kills " is tJie 
nortlierii mouth of those rivers emptying into New York bay, as Benson and 
Brodhead say : "the Sound " is i^ew- southern tmuth, emptying into Rari- 
tan bay. "Would General CocimANE have announced to the New York 
Historical Society that " the waters of the Hudson in their seaward cur- 
" rent, debouch through both the Narrows and the Kills," or that " the 
" Hudson River empties itself, through its two mouths, the Narrows and 
" the Kills, into the Bay of New York ?"— would he have thought it ne- 
cessary to prepare his elaborate paper — had he known that, not a droii of 
the water of the Hudson flmcs through thejMssage between Staten Island and 
the ')nain ? 

With this foct established beyond controversy, that no waters of the 
Hudson ever " lave the Staten Island shores " on the west, this Review 
might close ; Init a sense of what is due to truth and history prompts 
some reference to, and comment upon, the nature of the impeachment of 
New Jei-sey before the public thus made by the Attorney-General of her 
sister State of New York, and the manner in which she has hccu arraign- 
ed. 

Mr. CocHRAKE says, " The eftbrts of New Jersey to neutralize the com- 
mercial advantages of New York, and to promote her own aggrandize- 
ment are notorious ; " that "recklessness" and "persistence" have char- 
acterized the prosecution of her " avaricious desires; " that " carved sur- 
"reptitously from the side of New York, under the opiates of one Cap- 
" tain John Scott, artfully discharged upon the drowsed senses of James, 
"Duke of York, from the hour oi her separation to the present, she has 
" formed her national life to the rugged career of incessant competition 
"with her j)arent State;" and is eloquent in the use of expletives such 
as the "encroachments," "pretensions," "preposterous claims," &c., of 
New Jersey, exhibiting feelings of irritability and hostility towards the 
State, which, considering his official position, comity alone should have 
led him to restrain. Let these accusations receive a brief examination. 

The right of James, Duke of York, as grantee ot his brother, Charles 
II., to convey to others that jDart of his domain now constituting New 
Jersey, does not seem to be questioned, and the intimate relations known 
to have existed between him and those to whom he disposed of it* war- 
rants the assertion that the conveyance was intended to l)e full aud com- 
plete, according to its tenor, whether " surreptitously " obtained or not. 
He was dealing vni\\ personal friends and not striving to outwit stran- 

* Pepy's Diary and Correspondence afford abundant evidence of tliis. 



14 EASTERN BOtrNDART OP NEW JERSEY. 

gers, by only kee^Ding " the word of promise to the ear," and fully expect- 
ed that the territory he described, with all its advantages and privileges, 
would pass into their quiet possession. His subsequent acts clearly prove 
this; for on the 23d of November, 1672, more than eight years after the 
grant, in a letter to his Governor, Lovelace ; on the 29th of July, 1674, 
in a new grant to Sir George Carteret, in severalty ; in another, on the 
10th October, 1680, to Sir George's grandson and heir ; and on the 14th 
March, 1682-3, in still another grant to the twenty-four proprietaries, did 
he reatRrm, in the most emphatic manner, the rights, powers, and privi- 
leges originally conveyed. Mr. BRODHEADis of the opinion that, although 
the same words of conveyance were used in all these documents they can- 
not be assumed as covering Staten Island, because Governor Nicolls, wri- 
ting to Lovelace in 1669, informs him that " Staten Island is adjudged to 
" belong to New York ;" but the well-understood sentiments of Nicolls, 
in relation to the transfer of any part of New Jersey to Berkley and Car- 
taret, render it very necessary to know liy whom it was so " adjudged." It 
was not, certainly, by any legal tribunal, or the question of title would 
thereafter have been definitely settled; but if " We of this government," 
as Dongan expressed himself, were the only arbiters, it is not surprising, 
that the decision should have failed to meet with general acceptance. It 
cannot be fairly presumed that such a curtailment of the original limits 
of his grant should have been "adjudged" by James, and nothing ap- 
pear on the face of his subsequent grants to indicate any intention to 
change the boundaries: — grants made long after the "ojjiates of one 
" John Scott " must have lost their effect.* 



* The views of Mr. Brodhbad, referred "The transfer was a very improvident act 

to in the text, were set forth at the time which the Duice afterwards reG;retted, and 

Mr. Cochrane read his paper before the whicli he would never have executed, if he 

New Yorli Historical Society, and although had been properly advised. It was done in 

the writer differs from him very decidedly haste ; while the expedition sent to seize 

in some of his conclusions, yet the several New Netherland was yet at sea ; and, ap- 

important and interesting facts which he parently, through the cajolery of the infa- 

80 ably grouped together on that occasion, mous Captain John Scott. N'o steps were 

are evidently deserving of introduction taken by the Duke's grantees to secure 

here, many of them being new to most his- their own possession of New Jersey, until 

torians. In the course of his remarks, Mr. dispatches were received from Nicolls that 

Brodhead said :— he had conquered New Netherland from the 

"The constant opposition of the early Dutch. It was not until June, [August] 

Colonial authorities of New York to the 1665, that Philip Carteret arrived in Ameri- 

dismemberment of its territory as granted ca, as Governor of New Jersey ; and then, 

by King Charles the Second to his brother for the first, Nicolls learned what had been 

James, in March, 1664, by the Duke of so unwisely done by his chief, after he had 

York's transferor "Albania," or New Jer- left England. For ten months, he had ex- 

sey, to John, Lord Berkley, and Sir George ercised undeniable authority over the entire 

Carteret, in the following June, is, of region between the Hudson and the Dela- 

course, familiar to those acquainted with ware, by virtue of his commission, as Gov- 

American history. emor from the Duke of York, of 2d April, 



EASTERN BOimDARY OP NEW JERSEY. 



15 



These boundaries were so explicit, that it is surprising there should 
have been any difference of opinion about them. It will do no harm to 
reproduce them here, inasmuch as they are only given in part liy Mr. 
Cochrane. 

" All that tract of land adjacent to New England and lying and being 
'■'•to the tcesticard of Long Island and Ifanhattan Island, bounded on the cast, 
''^jxirt hy the main sea, and 2}«rt hi/ the Hudson River, and hath upon the 
" west, Delaware Bay or river, and extending southward to the main 
" ocean as far as Cape May at the mouth of Delaware Bay; and to the 
"northwad as far as the northerninost branch of the said Bay or River of 
^Delaware, lahich is in forty-one degrees and forty minutes of latitude, and 
" crosseth over thence in a straight line to Hudson's River in forty-one 
" degrees of latitude, which said tract of land is hereafter to be called by 
" the name or names of New Cfieserea or New Jersey." 

Could language be used more definite ? On the east a river and the 
ocean — on the west and south a river and a bay — on the north a straight 



16G4. As soon as he heard the nnwelcome 
news, Nicolls wrote earnestly to the Duke, 
remonstrating against his improvident ces- 
sion of New Jersey; and proposing that 
Berkley and Carteret should give up their 
prize, and take, in exchange, the territory 
on the Delaware, which had been reduced 
from the Dutch ; (^ew York Colonial Docu- 
ments III, 105 ,• Chalmers' Political Annals 
—who gives the date erroneously, as Novem- 
ber, 1685,-624, 625.) On the 9th of April, 
1666, Nicolls urged the same suggestion to 
Lord Arlington, the English Secretary of 
State; {Colonial Documents IIT, 113, 114.) 
When he returned to England, the late Gov- 
ernor of New York carried with him a let- 
ter from Maverick, his fellow Royal Com- 
missioner, to Lord Arlington, dated 25th 
August, 16C8, in which the inconvenience 
of the Duke's release of New Jersey was 
demonstrated : ( Colonial Documents III. 
174.) ***** James, accordingly, 
took steps to regain New Jersey. It was 
not difficult for him to do this. Sir George 
Carteret was in Ireland, of M'hich he had 
been appointed Lord Treasurer, in 1667. 
Lord Berkley, who had been one of the 
commissioners of the Duke of York's pri- 
vate estate, had just been detected in the 
basest corruption, and was now turned out 
of all his offices at Court, (Pepys, Bohn's 
«Z., 1858, ///., 167, 172, 174, .331, 7F., 28; 
Burnet, I., 2ii".) He was glad enough to 
win the Duke's favor by offering to surren- 
der New Jersey to him ; and Carteret, at 
Dublin, willingly confirmed his partner's of- 



fer, especially as they were to receive the 
Delaware territory in exchange. 

" The evidence of this interesting and 
hitherto unknown feature in American Co- 
lonial History, has recently come to light in 
the " Winthrop Papers,'' now in course of 
publication by The Massachusetts Histori- 
cal Society. On the 24th of February, 1669, 
Maverick wrote from New York, to Gov- 
ernor Winthrop, of Connecticut, that Gov- 
ernor Lovelace had just received a letter 
from his predecessor, Nicolls, at London, 
announcing that " Staten Island isadjudg- 
" ed to belong to N : Yorke. The L. Bark- 
" ley is under a cloud, and out of all his of- 
"fices, and offers to surrender up the pa- 
" tent for N. Jarsey. Sir G. Carteret, his 
" partner, is in Ireland, but it is thought 
" he will likewise surrender, and then N. 
"Yorke will be inlarged." {Massachusetts 
Historical Society's Collections, XXXVII., 
315.) Carteret appears to have promptly as- 
sented to the proposed surrender ; and the 
transaction was regarded on all sides as 
complete, for Sir George wrote to his broth- 
er Philip, the Proprietor's Governor at 
Elizabethtown, in June, 1669, that "New 
"Jarsey is returned to his Royall Highness 
" by exchange for Delawar. * * * some 
"tract of land, on this side the river, & on 
"the other side, to reach to Maryland 
"bounds." {Massachusetts Historical So- 
ciety's Collections, XXXVIL, 319.) 

" Yet, while man proposes, God disposes. 
Neither the surrender nor the exchange 
thus arranged were ever accomplished. The 



16 



EASTERN BOUNDARY OF NEW JERSEY. 



line extending from a point in 41 deg. 40 min. N. L. on one river to a 
point in 41 deg. N. L. on the other. Yet, it seems, the attempts of New 
Jersey to retain what was so clearly in word and intention conveyed to 
her is characterized by Mr. Cochrane as indicating an avaricious and 
grasping spirit. Let a map of the States of New York and New Jersey 
be examined, and it will be found that the north partition point in their 
boundary is neither at the "northernmost branch of the Delaware" nor 
"in 41 cleg, and 40 min. of latitude" but at 41 deg. 21 min. 31 sec. ! 
nearly twenty miles of latitude south of where it should be ; causing < 
about two hundred thousand acres of »the soil of grasping New Jersey to 
lie on the New York side of the line ; and had the wishes, aims and pro- 
jects of the latter entirely succeeded, the line would have been still fur- 
ther south. 

It would be imi3ossible to com^jress within reasonable limits the i)arti- 
culars of the negotiations that led to this result ; if the details are de- 
sired, they can be found in the eighth volume of the Proceedings of the 
Neic Jersey Historical Society. No one can give them an impartial exami- 
nation without being satisfied that, if there were any "avaricious de- 
sires " exhibited through the long jjeriod during which the controversy 
lasted, it was not on the part of j!^eic Jersey. 



restoration of Charles the Second to the 
Sovereignty, which that grand old states- 
man, Oliver Cromwell, had administered 
with surli spcudid abilit)-, was followed by 
the most disgracefnl poltroonery which 
marks the annals of sycophantic and title- 
loving Englishmen. The Court became 
vicious, to a proverb. Sir George Carteret 
was expelled the House of Commons for cor- 
ruption, in the autumn of 1669 ; but he still 
held his place of Treasurer of Ireland. 
Early in the spring of 1670, Lord Berkley, 
the disgraced swindler of the Duke of 
York, was, by the favor of the king, made 
Lord Lieutenant of Ireland, where he join- 
ed his co-partner Carteret. Both the New 
Jersey grantees were also proprietaries of 
Carolina, of which Berldey had just be- 
come Palatine, on the death of the Duke of 
Albemarle. At this moment. Lord Balti- 
more, an influential Irish peer, revived his 
old claim to the Delaware territory, which 
he insisted belonged to himself, as proprie- 
tor of Maryland, and not to the Duke of 
York, as the English representative of its 
ancient Dutch owners. (Colonial Docu- 
ments, TIL, 70, 113, 186.) 

" This Delaware question was a very nice 
one, for it raised several ugly points about 
the original title to New Netherland, which 
the English usurped from the Dutch. It 



was handled very gingerly for several years 
and was not definitely settled against Mary- 
land, by the Trivy Council, until 1685. 
Meanwhile, Lord Baltimore was a power- 
ful peer of Ireland, and might give her 
Lieutenant and Treasurer much trouble, if 
they made him their personal enemy. On 
comparing notes at Dublin, Berkley and 
Carteret thought it their best policy to let 
the Duke of York fight out the Delaware 
question with Lord Baltimore in London ; 
and, in the mean time, they evaded the ful- 
filment of their agreement with James, and 
retained New Jersey. After the death of 
Nicolls, in 1672, they even prevailed on the 
Duke to write to Lovelace, fully recognizing 
their rights as grantees of the Province. In 
August, 1673, the whole of ancient New 
Netherland, including New York, New Jer- 
sey, and Delaware, was reconquered by the 
Dutch. The treaty of Westminster restor- 
ed these acquisitions to Charles the Sec- 
cond, in February, 1674. In the following 
June, the King, by a new Patent, regranted 
to his brother James, the entire territory of 
New York and New Jersey. What the 
Duke did after he received his second Pa- 
tent, it is not my purpose now to explain. 
I will only remark that the decision, which, 
in 1669, adjudged Staten Island to belong to 
New York, has never been disturbed. * * " 



EASTERN BOUXDAKY OF NEW JEKSET. 17 

Let the same map be looked at with reference to the eastern boundary. 
A stranger examining its details, with the view of locating the lines 
named in the grant from James, would most naturally suppose that Sta- 
ten Island — being part of the land westward and southward of Long Is- 
land and Manhattan Island — belonged to New Jersey; and it may be ad- 
missable here, although it has not been intended in this review to touch 
upon any legal jjoints or technicalities, to draw attention to a passage 
from the argument of the New Jersey Commissioners in 1837, showing 
what should be the efi'ect of a literal carrying out of tlie peculiar phrase- 
ology of the grant: 

" Hudson river and all the dividing waters are notoriously to the west- 
ward of Long Isla/id aiul Manhattan Inland, and therefore within the de- 
scrii^tive words of the grant. The land to the westward of these islands 
passed by express words. Tliis term \Iand] is of great extent in its legal 
operation, including all al)Qve and all below the soil, and therefore em- 
braces all the lands westward covered by water. Unless the words des- 
cribing the land granted are rejected, Wew Jersey must iegin where those 
islamls end. Nor ought they be departed from in favor of the grantor, 
because he has added a general boundary, calculated to make it vague 
and uncertain. If a conflict exists between a particular description and a 
general boundary, the latter ought to yield to the former, for it is an es- 
tablished rule in the construction of deeds, that if the grantee's words 
are sufficient to ascertain the lands intended to be conveyed, tJiey shall 
jjass, although they do not correspond to some of the particulars of the 
description. Then as no doubt can exist of the intention to pass all the 
lands to tlie west of these two islands, the additional description which 
• makes the eastern boundary to be the main sea and the Hudson, ought 
not to lessen or impair the benefits of the grant in favor of the grantor, 
and against the graidees^ 

How does it happen then, that New Jersey with all her avaricious and 
aggrandizing tendencies should have failed to secure the jjossession of 
Staten Island ? 

A student of our Provincial history needs not to be informed of the 
opposition made by Nicolls, whom the Duke of York had appointed 
Governor of all his possessions in America, to the transfer of New Jer- 
sey to Berkley and Carteret; it has already been adverted to. Before he 
was aware of the transfer he had exercised authority over the tract and 
bestowed grants upon persons intending settlements at Elizabeth and in 
Monmouth County ; and it was not calculated to add to his amialjility 
or courtesy towards the Proprietors' Governor, Philip Carteret, who arriv- 
ed in 1665, to have those grants very summarily nullified by his superior. 
Carteret's attention being engrossed by the weighty cares and responsibili- 
ties incident to his peculiar position in a new land, among strangers, 
3 



18 EASTERN BOUNDARY OP NEW JERSEY. 

witli few, if any, trusty advisers, all exi)edients and measures tor peo- 
pling and governing the Province untried, it is not surprising tliat ques- 
tions concerning boundaries or territorial riglits, should for a while have 
been left untouched. It is not to be supposed, however, that, because, as 
Mr. Cochrane states, he has failed to discover any " recorded evidence" 
of the " initiation of New Jersey's enterprising encroachments " upon 
Staten Island, prior to 1681, that her right thereto was not, previously 
thought of and asserted. It is susceptible of proof that acts of juris- 
diction over the adjacent waters Avere performed by New Jersey, prior 
to that date, in estajjlishing ferries — one ferry between Communipau and 
New York, being licensed as early as 1669, by Governor Carteret ; and anoth- 
er estalilished between Bergen, Communipau and New York, in 1678. 
Mr. Cochrane has discovered an applictttioa made to the New York au- 
thorities for the establishment of one in 1750, nearly a century later, and 
considers that a proof of jurisdiction over the waters ))eing ascriljed to 
that province. Will he accord equal sufficiency to the prior cases in New 
Jersey ? 

But as many of the inhaljitants of the city of New York, both Dutch 
and English, had their phmtations on Staten Island, their relations had 
been and continued to be altogether with that place and government ; 
and. of course the authority of the functionaries of New York l^ecame 
more firmly established with each passing year. Yet there are not want- 
ing, e\n deuces of a conviction in the minds of some of the first men of 
that province, that Staten Island had passed from under their control. 
Thus in 1668, Samuel Mavericke, one of the King's Commissioners, in a 
letter to Secretary Arlington, says plainly — when ol)jeeting to the trans- 
fer of New Jersey to Berkley and Carteret ; — "The Duke hath left of his 
^^ latent notJnii'j to the icest of Mio York. * * Long Island is very poor 
" and miserable, and beside the city, there are but two Dutch townes 
"more, Sopus and Albany." Staten Island was too important a settle- 
ment to have been left out of this summary had it been regarded as yet 
a part of New York. If no doubt was entertained, how comes it that 
Nicolls should think it of interest to announce that the island had been 
"adjudged to New York ? " 

It will be rememl)cred also, that negotiations were on foot for an ex- 
change of New Jersey for other possessions on the Delaware ; and that the 
exchange was thought at one time to have been perfected.* This of 
course would repress any formal attempts l)y Governor Carteret to possess 
himself of the island ; and shortly after, came the Dutch to ]-econquer the 

* See foot note on pages 1-1-16. 



EASTERN BOUNDARY OF NEW JERSEY. 19 

country and unsettle the relations between the people and the govern- 
ment. So that the point made by Mr. Cochrane, of the postponement 
of the "enterprising encroachments" of New Jersey until 1681, if well 
taken, is susceptible of explanations showing it to have been perfectly 
consistent with an unshaken belief in the sufficiency of New Jersey's 
claim. 

The repeated confirmations of the original boundaries liy the Duke, 
have already been adverted to. They cannot be otherwise considered 
than as virtual rebukes of the aggressive 'disposition of his governors, 
and established beyond doubt his owni intention to concede all his rights 
within those liounds; for although his Secretary, Werden, at one time ex- 
pressed some douljt as to whether the successors of Sir George Carteret 
("for whom the Duke hath much esteeme and regard") would receive 
from him equal favor, yet we find the same Secretary, as late as Novem- 
ber, 1680, writing, that his Royal Highness had been pleased " to con- 
" firm and release to the Projirietors of both Moities of New Jersey, all 
"their and his Right to any Thing besides the Rent reserved, which fiere- 
" to/ore may have teen doubtful^ whether as to Government or to Publick 
'Dutys in or from the jjlaces within their grants." Is it at all surprising 
that with such documents in their possession, the proprietors should have 
contested the occuj^ancy of Staten Island by New York ? or that from 
that time to the year 1833, New Jersey should have consistently asserted 
the superior validity of her claim ? Should her course in doing so, with- 
out any resort to ultra measures to enforce it, bring upon her contumely 
and unwarrantable aspersions ? 

Notwithstanding all the proceedings of New York calculated to exas- 
perate her people — the forcible arrest and abduction of her citizens from 
her own soil, even from the very wharves of Jersey City, under processes 
from New York Courts — the neglect often shown to the ajjpeals of New 
Jersey for some action that might lead to a settlement of the controversy 
— even actual insults, most pointedly e^nnced by the passage of an Act 
by one of the Legislative houses, in 1827, which declared the boundary 
of New York to extend to low water mark along the whole of the New 
Jersey shore : at the very time when Commissioners were in session at Albany^ 
discussing terms of compromise* — notwithstanding all these acts of at- 
tempted or successful aggression. New Jersey has ever shown not an ava- 
ricious, l)ut a conciliatory and lilieral sjoirit, never more clearly manifested 
than in the terms she finally acceded to, by which she relinquished Staten 
Island and other possessions, in order that she might rescue her rights in 
the adjoining waters from the alsorling tendencies of New York. 



* See mesaage of Got. Williamson to the Legislature of New Jersey, Feb. 4., 1828. 



20 EASTERN BOUNDARY OP NEW JERSEY. 

One other topic is presented by Mr. Cochrane, which must be noticed 
liefore this Review of this remarkable jjaper is brought to a close. It is 
intimate'd that the determination of New Jersey's claims " will doubtless 
require the ultimate decision of the Supreme Court of the United 
States."* 

The Supreme Court of the United States has never before, probably, 
})een held in terrorem over New Jersey. Asserting no claim not founded 
in right, asking nothing she might not reasonably expect to be granted, 
and ever ready to make all projier concessions for the preservation of 
peace and promotion of harmony, the decisions of the Supreme Court 
have rather been sought than avoided in all controverted cases, as likely 
to bring with them satisfactory results. This disposition has been re- 
markably evinced in the progress of the discussion with New York re- 
specting boundaries. 

Who proposed in 1818, the appointment of Commissioners to prepare 
a statement of facts relative to the controversy, to be submitted to the 
Supreme Court for its decision ? New Jersey ! By whom was the jjro- 
position left, not only unresponded to, but unnoticed? New York ! Who 
was it that, in 1827, declined to recommend a reference of the matter to 
the Supreme Couit, as suggested by the Commissioners of New Jersey ? 
The Commissioners of New York ! Wliat, eventually, was the princij^al 
inducement New York had for the apiDointment of the Commissioners 
who agreed upon the terms of settlement in 1833? The commencement 
of a suit in the Sui^reme Court, with a view of having the just claims of 
New Jersey established ! The fixct is indisputable, that the unwilling- 
ness to bring the matters at issue to a judicial decision, has all been on 
the jDart of New York.f Why then, after New Jersey has thus fairly 



* Mr. Cochrane's language is " New Jer- appointment of Commissioner?, which was 

say, contending that the main sea flows on- responded to ; and the Joint Commission 

ly without Sandy Hoolc, asserts, by an ex- met in Newarlc in September and October, 

tension thereto of the central dividing 1807, but " the Commissioners on the part 

boundary line, her right to the southerly of New York, would not agree to any gene, 

one half of the Lower Bay of New York, ral jurisdictional line inconsistent with the 

inclusive of a substantial section of the principles set up by them "—which involv- 

ship channel to the Harbor of New Y^ork. ed the exclusive jurisdiction over all the 

" The determination of this claim of right waters between the two States, "including 

has already received juridical judgment; shores, roads, and harbors within the nat- 

and trill, doubtless, require the ultimate cle- ural territorial limits of New Jersey." The 

cision of the Supreme Court of the United utmost of their concessions being a willing- 

States. Should it be repressed, as there is ness " to receive proposals for extending 

no good reason to doubt that it will be, an accommodations in some particular cases 

important enquiry would ensue into the which might be shown to be beneficial to 

rights of New Y'ork in the Lower Bay, from citizens of New Jersey, and not injurious 

the mouth of Mattavan Creek to Sandy to New Yor^y —(Beport of Neiu Jersey 

Hook." Commissioners to Legislature. 

t As early as 180C the Legislature of New In 1818, was made the proposal referred 

Jersey made advances to New York for the to in the text, which was never noticed by 



EASTEKN BOUNDARY OP NEW JERSEY. 



21 



manifested her desire to abide liy the decisions of the tribunal of last re- 
sort, does the Attorney General of New York think it necessary to threat- 
en her therewith '{ Why, after more than thirty years acquiescence in, 
and, it is believed, cordial co-operation on the part of both States to car- 
ry out the terms of the agreement entered into in 1833, is it now thought 
becoming for so prominent an officer of the State of New York to call in 
question in so public a manner, the propriety of that agreement, if not, 
indeed, its binding force 'i Doubtless, if Benjamin F. Butler, or Peter 
Augustus Jay, or Henry Seymour were living, the Historical Society of 
New York might have it demonstrated that, as Commissioners of New 
York, they did not assent, in that agreement, to any thing which " traf- 
ticked" away "the interests of the State," or "compromised them by re- 
" linquishing a moiety of the unquestioned rights of New York." It is 
no part of the writer of this Revieiv to vindicate them; that must be left 
to others. 

The agreement of 1833 was intended to lie perpetual, every formality 
being observed calculated to give it a duration commensurate with the 
existence of the States themselves, having been confirmed by the legis- 



the axithorities of New York. 

In 1834, New Jersey again authorized the 
appointment of Commissioners to meet 
Commissioners to be appointed on the part 
of New York, but the time limited by the 
Commissioners was suffered to expire with- 
out any corresponding act being passed by 
the Legislature of that State. 

In 1826, the arrest and imprisonment of 
the .Deputy Sheriff of Richmond County, 
for serving process, under the autliority of 
the laws of New York, within the jurisdic- 
tion of New Jersey, led to an informal inti- 
mation from the Governor of New York, 
that, if the time for the appointment of 
Commissioners was extended, they would 
probably be appointed on the part of New 
York. Ilis intimation was promptly acted 
on by New Jersey, and tardily by New 
York. The Commissioners met in New- 
ark, New York and Albany, at the latter 
place witnessing the passage of the insult- 
ing act mentioned in the text. " This gov- 
" ernment had a right to expect" said Gov- 
Williamson in his message to the Legisla- 
ture, ■' that pending the negotiation for an 
"amicable settlement of the differences, on 
" conditions honoiable and satisfactory to 
" both parties, all things would have been 
"permitted to remain astheywere." As to 
the proposition made by the New Jersey 
Commissioners for a submission of the dif- 
ferences to the arbitrament of the Supreme 



Court which was unfavorably received by 
the Commissioners of New York, it must 
be said in explanation, that the Supreme 
Court ihe?i was in such bad odor in New 
York, that on the 12th of February, 1829, 
the Committee on the Judiciary in the Sen- 
ate of the State, in a report relative to the 
New Jersey Boundary,, made it a question 
w/ieiher '■'■the nrt\c\e of the Constitution of 
" the United States, which extends the Fed- 
" eral power to controversies between two 
" or more States, gives the Supreme Court of 
'■'■the United States cognizance of gnestioris 
'•'■which may arise between members of the 
" Confederacy as to their sovereignty and 
"■jurisdiction/'' 

The Commission of 1S2~ thus terminating 
fruitlessly. New Jersey determined to test 
the authority of the Supreme Court in the 
premises. 

She commenced a suit in that Court in ■ 
February, 1829, and the necessary papers 
were served upon the authorities of New 
York, returnable in August following. No 
appearance having been entered for the de- 
fendants, further processes were issued, 
returnable to January term, 1830 ; but still 
no attention was paid to the mandates of 
the Court. Mr. Southard, Attorney Gener- 
al of New Jersey, and Mr. Wirt, the solici- 
tor associated with him, then notified the 
Governor and Attorney General of New- 
York that they should move the Court on 



n 



EASTERN BOUNDARY OP NEW JERSEY. 



latures of both, and sanctioned by a special law of Congress, "made in 
pursuance of the Constitution," and consequently of supreme authori- 
ty, " any thing in the Constitution or Laws of any State to the contrary 
notwithstanding." Is it at all probable that the Supreme Court could, 
if it would, or would if it could, set aside an agreement thus made and 
thus ratified ? Surely, any attempt to disturb the amicable relations ex- 
isting between the two States, by suggestions of the kind put forth l)y 
Mr. Cochrane, cannot be considered but inij^olitic, unjust, and unwar- 
ranted by any circumstances of the time. 

Enough has been said to show how erroneous in all respects are the 
views the gentleman has promulgated in consequence of his misconcep- 
tion of the true topograjihy of the district under discussion. Technical- 
ities of law have not been touched upon, as their discussion entered not 
into the intention of the writer ; but had the claims of New Jersey l)een 
submitted, as she desired, to the decision of the Supreme Court, the re- 
sults would probably have been more favorable for her interests. 

The length of this Review precludes any discussion of the terms of the 
agreement of 1833-4 fixing the boundaries as they now are.* Although 



tlie 13th February, to proceed ex parte in 
the cause. When the day arrived, New 
York did not appear, but a letter from the 
Attorney General of the State, informed the 
Court that its process had been received, 
but, said he, " the opinion is entertained on 
" the part of the State of New York that 
" the Court cannot exercise jurisdiction in 
" such a case without the authority of an 
" act ol Confrress for carrying into execn- 
" tion that part of the judicial power of the 
" United States which extends to controv- 
" ersies between two or more States." The 
Court, however, through Chief Justice 
Marshal, declared that " precedent for 
"• graTiting the process had been established 
'■ upon very grave and solemn argument" — 
but, in order that some defective technicali- 
ty in the service might be remedied, the 
consideration of the cause was postponed. 
In January term 1831, after the regular 
service of process, New Y'ork not appear- 
ing, Chief Justice Marshal delivered the 
opinion of the Court, establishing the point 
that the defendant having failed to appear, 
the complainant had the right to proceed 
ex parte, and it was decreed and ordered 
that " unless the defendant, after due no- 
" tice, should appear on the second day of 
"the next January term and answer the bill 
" of the complainant.this Court will proceed 
" to hear the cause on the part of the com- 
" plainant, and to decree on the matter 



•' of the said bill." 

In January 1832, New Y'ork did not an- 
swer otherwise than by filing a demurrer 
signed by the Attorney General of the 
State, which the Court accepted as an au- 
swer, because Mr. Bionson, the Attorney 
General, was a practitioner in the Court, 
and the paper in consequence might be 
considered as an appearance of the State , 
—but the Court said, "If the Attorney 
" General did not so mean it, it is not apa- 
" per which can be considered in the cause, 
" or be placed on the files of the Court."— 
The Court, therefore, directed the demurrer 
to be set down for argument in the follow- 
ing March. {Peter's U. S. Supreme Court 
Heports, vol. III., p. 461, rol. T'., p 284., vol. 
F/.,;^323.) 

The appointment of Commissioners, 
however, superceded further judicial action, 
and it is thought that the consent of New 
Y''ork to enter into the arrangement was 
due in some measure to the fact that, the 
friends of Mr. Van Buren, then a candi' 
date for the Vice Presidency, and looking 
still higher, were fearful, as he was well- 
known to be averse to the settlement of 
the controversy by compromise, that he 
u'ould not get the rote of New Jersey unless 
the differences between the two States 
were amicably adjusted. 

* The agreement will be found appended 
to these papers. 



EASTERN BOUNDARY OF NEW JERSEY. 23 

SO inconsiderately denounced by Mr. Cochrane, they will be found on 
examination to have been framed in a spirit of anxious solicitude to put 
an end forever to the disputes between the two States, the concessions 
beiiag for the most part made by New Jersey; and it is hoped that, nei- 
ther by word nor deed, may the good understanding then arrived at l^e 
disturbed. - W. A. W. 

Neavark, New Jersey, August, 1865. 



*4{.* The foregoing Review was replied to by Mr. Henry B. Dawson, the Editor 
of tlie " Yonlitrs Gazette," in a series of articles, which appeared wcelily in 
the columns of his paper, from October 28th to December 16th, 1865, as con- 
tributed by " a member of the New York Historical Society." Most of the 
following "Rejoinder" was written, and part of it in the hands of the pub- 
lisher of the Gazette, before the authorship of the articles was announced, 
which will account for its being framed as an answer to an anonymous writer. 
It appeared in the Gazette in four portions, between December 23d, 1865, and 
January lith, 1866. 



EEJOINDER OF MR. WHITEHEAD 

TO 

" A MEMBER OF THE NEW YORK HISTORICAL SOCIETY." 



A correspondent of The Gazette, introduced to its readers as " A 
" Member of the New York Historical Society," in attempting to eluci- 
date the vexed questions which have been discussed, under the heading 
of "the New Jersey Boundary," has signally succeeded in surrounding 
them all with a mystifying halo, well calculated to mislead the unwary, 
and those unaccustomed to the effect of the cross lights which historical 
research is apt to throw upon controverted subjects. In view, therefore, 
of the position the writer has felt called upon to assume, he deems it 
justly due to himself and historic truth, to endeavor to relieve whoever 
may be interested in the controversy, from the maze of error into which 
they are liable lo be led by the gentleman's long and labored article, al- 
though, from its tone and temper, its j^ersonalities and most unwarrant- 
able aspersions of motives, it might very properly be left unnoticed. 

It is well, perhaps, to draw attention to the fact that this discussion 
originated in a positive announcement by Attorney-General Cociikane 
that " the waters of the Hudson in their seaward current debouch 
" through both the narrows and the Kills;" that "Ihe Hudson River 
" empties itself through its two mouths, the Narrows and the Kills, in- 
" to the Bay of New York;" and that "all the waters which lave Sta- 
" ten Island shores were, from the period of their discovery, known and 
" accepted, and should properly now be considered, the waters of the 
"Hudson River."* 

These assertions were presented and urged in a manner and form ex- 
ceedingly objectionable to Jerseymen ; and the writer, in reviewing the 
paper through which they were given to the public, exhoncrated his 
native State from the opprobrium sought to be cast upon her, and, at 
the same time, showed conclusively that the waters referred to, west of 
Staten Island, could never have been recognized, and could not now be 
recognized, as part of the Hudson, inasmuch as not a drop of theicaters of 

* As Mr. Dawson has subsequently as- the reader is referred to page 4, for Mr. 

eerted that "General Cochrane made no Cochraue's own language iterated and re- 

Buch ' positive announcement ' as Mr. iterated as quoted in the text. 
Whitehead has presented in his rejoinder," 

4 



26 EASTERN BOUNDARY OF NEW JERSEY. 

that river jjasses through that channel. The "Member of the New York 
Historical Soctety," who has coDie to the support of Mr. Cochrane, 
does not pretend to controvert this truth ; " but," he says, "the question 
"is not as to tha phj/sical facts concerning those waters, but solely, the 
'■^historical character which lielongs to them." Indeed! Is is not the 
province of history to elicit and treat of facts? Is any one class of facts 
less deserving of consideration than another 'i Can any amount of evi- 
dence, historical or otherwise, establish that which never did and never 
can exist? It was a "physical fact," in the days of Galileo, that the 
earth moved. Would the gentleman have us ignore that fact and be- 
lieve it to have been a fixture in the universe then, and to be so now, 
because such was its " historical character " among the Inquisitors of 
1633 ? If facts are to be set aside as intrusive in a historical discussion, 
then indeed, was he, of old, right, when he said " read me not history, 
for that I know is false.-'' But, as the gentleman concedes that the 
waters of the Hudson do not flow between Staten Island and the main 
land, that point, the only one really at issue, may be considered satisfac- 
torily settled ; and attention may be directed to the theories upon which 
he bases his historical disquisition. 

It is unnecessary to recapitulate the grounds upon Avhich it is attempt- 
ed to ignore, as of no legal force, the Royal grant of Charles II. and the 
transfer by the Duke of York to Berkley and Carteret in 1664, for, in 
reality, their existence, or non-existence, has little to do with the true 
merits of the case; but, it may be asked, if "physical facts" are expect- 
ed to give way to the "historical character" of the discussion, Avhy 
should not legal doubts be set aside for the same reason ?— particularly, as 
Ave are told subsequently, (the Commissioners of New Jersey, in 1769, 
having the credit of originating the idea) that, in constructing deeds 
and grants "the principles of justice require that the intent and mean- 
ing of the jjarties should be the governing rule of construction," for 
the " intent and meaning " of the grants referred to are not questioned 
even ,by the Gazette's correspondent. But the first point he makes, after 
ignoring these grants, is, that the rights of John Lord Berkley and Sir 
George Carteret — and, of course, those claiming through one or both of 
them — " were derived solely from the Royal Charter to the Duke dated 
"June 29th, 1674, and from the Duke's Lease and Release to Sir George 
" Carteret in severalty dated July 28th and 29th, 1674, and from no 

" OTHER SOURCE WHATEVER."* 



* In order that Mr. Dawson's areuments grants of 1664 are set forth in the following 

and statements may be fairly presented, extract ; why he wishes them set aside will 

the most material of them will be given in become manifest directly, 

his own words. His objections to the " The reason for this rejection of the 



EASTEKN BOTJNDARY OP NEW JERSEY. 37 

Ontliis the writer joins issue with him, not only as to the fact itself, 
Imt also, as to the conclusions based ujoon it, if it were a fact. 

This restriction of the rights of the Proprietors of New Jersey and 
their assigns, is made to bear, first, upon their authority to govern the 
country which had been conveyed to them. It is said "no portion ot 
" which prerogatives " [those derived from the King'\ " affecting the Realities 
"of the territory, was conveyed, or delegated by him to Sir George Car- 
" teret, in the Lease and Release of ' the said Tract of Land and premis- 
"es' to which reference has been made, nor in any other Instrument of 
" Conveyance or Delegation, either at that time, or at any subsequent 
"period." Now the very documents the gentleman refers to^i\\h Lease 
and Belease of the Duke, transfer New Jersey to Sir George Carteret, 
" in as full and ample manner as the same is granted unto the 
"said James, Duke op York, by the before recited Letters Patent, 
" and all the Estate, Right, Title, Interest, Benefit, Advantage, Claim, 
" and Demand, of the said James, Duke of York, &c."* That is certain- 
ly emphatic language, and as, according to the dogma endorsed bj'^ the 
gentleman, "the intent and meaning" of parties must be considered, ir- 
respective of facts, when both the facts and the meaning of the parties 
coincide, there should be acceptance, one would think, of the results 
thus confirmed; and it is rather significant of what he meant, that 
James should never have attempted himself, whatever his governors of 
New York may have done, to exercise, or even to claim, the government 
of the tract he thus conveyed. Even the acts of Andros, for which he 
had, apparently, authority in the letter of his commission, were repudia- 
ted liy the Duke,t as the "the Member of New York Historical Society" 

"Charter of March 12, 1664, and of the " 24, of the same year, they were wholly 

" Duke's Lease and Release of June 23 and " annihilated by the re-conquest and subse- 

" 24, of the same year, as leading authori- " quent occupation of that territory and 

" ties in this discussion, may be very brief- "those waters by the Dutch, under Com- 

"ly stated. They are these: "manders Binckes and Eversten, in 1673," 

"First: There are very grave doubts of " and any rights which either the Duke of 

"the validity, under the established and "York, or Lord John Berkley, or Sir 

"recognized law of England, of that Grant " George Carteret possessed therein, afte^ 

" which assumed to convey an estate which " the restoration of the same to the Eng. 

" was not only claimed by a foreign power " lish, and the actual occupation thereof by 

"with which Eoglaud was then at peace, " the latter, under Major Edmund Andros, 

" but one that was actually in the undis- " were derived solely from the Roj'ai 

"puted possession of that friendly power, " Charter to the Duke, dated June 29, 1674, 

" at the d.ate of the Grant, and for many " and from the Duke's Lease and Release 

" months after the execution and delivery " to Sir George Carteret, in severalty, dated 

" of that instrument to the Duke of York. " July 28 and 29, 1674, and from no other 

" Second : Whatever legal rights the " source whatever." 

" Duke or his grantees, Berkley and Car- * Grants and Concessions, p. 47. 

" teret, may have secured in the territories t See E. Jersey under the Proprietors, p. 

" or waters in question, by virtue of the 76 ; Grants and Concessions, p. 080 N. Y . 

" King's Grant of March 12, 1604, and the Col. Doc, III., p. 380. 
" Duke's Lease and Release of June 23 and 



28 EASTERN BOUNDARY OF NEW JERSEY. 

must know, if he is as familiar with the authorities as he professes to 
be. But if any thing more is wanted to confirm this view of what were 
his " intent and meaning " let the following extract from a document 
headed " Charles R." be read : 

I' * * :K -yy-g being willing and desirous to encourage the Inhabit- 
"ting and Planting of the said Province, and to preserve the Peace and 
" Welfare of all our loving Subjects residing there, we do therefore here- 
"by require you in our Name touseyour utmost endeavours to prevent all 
'' Troubles and Disorders there for the future ; and strictly to charge and 
"command all persons whatsoever inhabiting within the said Province, 
" forthwith to yield obedience to 2^^ the Laws and Government, which 
'' are Or shall be there established by the said Sir George Carteret, 
" who hath the sole Power under us to settle and dispose of the said 
" Country upon such Terms and Conditions as he shall think fit^^^^f and we 
" shall exjiect a ready complyance with this our Will and Pleasure from 
" all jiersons, &c., &c.,"* 

This letter, which was addressed to John Berry, Deputy Governor un- 
der Carteret, may be one of those facts that are to be treated " histori- 
cally," and robbed of its force, because it bears the date of 13th June, 
1674, a few days prior to the renewed Letters Patent to the Duke of 
York; but it is conclusive as to what were the "intent and meaning" 
of the Jirst conveyance, ichose existing vitality it confirms ; and also, as to the 
sentiments of all parties concerned about the time the second grants were 
perfected. But if doubts should be entertained in regard to this they 
will be expelled presently, and in the meanwhile attention is asked to one 
document which it is rather remarkable should have been overlooked by 
the gentleman. Every true historical enquirer should hesitate to attri- 
bute to an opponent an intention to suppress any fact or document essen- 
tial to the full consideration of any subject, and the course of the Ga- 
zette's correspondent in that respect, therefore, will not be followed ; 
but in New Yorlc Colonial Documents, Vol. III. — a volume from which he 
quotes — on page 265, will be found this letter from the " honest and 
wise " Sir William Jones, " the greatest man of the law " in his day, as 
he is styled by Burnet.f 

"28 July, 1680. 

" I doe hereby humbly certify that haveing heard wt hath beene in- 
" sisted upon for his Royll Highnesse to make good ye legallity of ye 
" demand of Five pr cent from ye inhabitants of New Jersey; I am not 
" satisfied (by any thing that I have yet heard) that ye Duke can legally 
'■'■ demand that, or any other duty from ye inhabitants of those land^. And 
. " yt wch makes ye case the stronger against his Ull Hss is, that these in- 



* Grants and Concessions, p. 49. 
Memoirs of his own Time (Second Ed.), Vol. I., p. 445. 



EASTERN BOUNDARY OF NEW JERSEY. 29 

•' habitants clayme undr a graunt from his Royll Highnesse to ye Lord 
" Berkley and Sir George Carteret in wch graunt there is noe reservacon of 
" any frofitt or soe much as of jurisdicon. W. Jones. 

It is evident that there was no " Member of the New York Historical 
Society " in those days to enlighten Sir William. A reference to the 
volume from which the letier is quoted will show the willingness of the 
Duke of York to comply with the " intent " of his grants as interpreted 
b}^ this legal giant. 

The second point made by the " Member "of the New York Historical 
" Society" is that, although James conveys " all Rivers, Mines, Minerals, 
" Woods, Fishings, Hawking, Hunting and Fowling, and all Royalties, 
" ProfRts, Commodities and Hereditaments xcliatsoever^ to the said Lands 
" and Premises belonging or appertaining : with their and every of their 
"Appurtenances, &c.," yet '■'■Islands,'^ " Soils,'' ''Harbors,'' and ''Marshes," 
which were also specially named in the Letters Patent from the King to 
the Duke, are not mentioned and therefore — the " historical character " 
of the missing items requires it to be said — " The Tract of Land and 
" Premises which were thus conveyed to Sir George Carteret and the 
" rivers belonging or appertaining thereto, were and are, historically, all 
" that then formed, and now form, the Province or State of East Jersey ; 
"and whatever tracts of land and ' whatever rivers belonging to or ap- 
" pertaining thereto,' which were not thus Released, and aK the Islands, 
" Soils, Harbours, Waters and Marshes which were between Connecticut 
"River on the East, and Delaware River on the West, ichether within or 
"without the limits of East Jersey, 'together with the river called Hud- 
" son's River' and the several prerogatives of Sovereignty which had 
" been separately and specifically conveyed to the Duke by the King, re- 
"m.vined with the duke entirely unimpaired." 

Poor East Jersey ! How desolate I No islands, no soils, no harbors, 
7W waters, no marshes, no quarries, (for " quarries " too were omitted), 
ALL " retained hy the Duke of York as part of his Colonial possessions, 
"and are still to be considered historically [! !] waters and lands of the 
" State of New York." Mr. Cochrane concluded his paper l>y propos- 
ing merely to haveRaritan Bay "expunged from the Map, and expelled 
from our physical geography as a New Jersey heresy," but his coadju- 
tor seems to consider it an easy matter to absorb the whole State. Such 
statements do not call for refutation. They are simply and preposterous- 
ly absurd, having neither facts nor "intents" to sustain them, as James 
himself, as we shall see, testifies under his own hand and seal. 
• It will have been observed the assertion is broadly made that no por- 
tion of the prerogatives granted to the Duke by the Letters Patent of 
June, 1674, were transferred to the Proprietors of New Jersey in the sub- 



30 



EASTERN BOtrNt)ARY OF NEW JERSEY. 



sequent Lease and Helease, '"'■ nor in any other Instrwnent or Conveyance or 
'■'■ Delegation^ either at that ti?ne, or at any subsequent 2^eriocl ;^'' and that the 
right of the Proprietors were •'derived solely from the Royal Charter 
"anxl the Duke's Lease and Release of 1674 and/wm no other somre,''' and 
whatever was not by them, in exjiress terms conveyed, " remained with 
the Duke entirely unimpaired." If all this were so, which the writer 
does not admit, and Sir William Jones denied, the Duke's right to dis- 
pose of those "prerogatives," and those "islands," "waters," "quarries" 
&c., as he might think proper was certainly unquestionable. Now that 
very thing he did by his conveyance to the twenty-four Proprietors of 
East Jersey on the 14th of March, 1682-3. With his usual courtesy, the 
" Member of the New York Historical Society " accuses the writer of 
giving a "mutilated " extract from this deed when referring to it on a 
l^revious occasion,* although the words he particularly dwells upon, as 



* This was in a note to the review of Mr. 
Cochrane's paper referring to the proceecl- 
ingsn at a meeting of the Council of New 
York, at Fort James, Feb. 1(5, lGS.3-4 ( V. I'. 
lUi/i'tes of Council Liber ^ l()83-88) in which 
it Avas said : 

"At that Council, Mr. Recorder, after- 
" ward .Mtoruey General, Grahame. said — 
" he believed in that clause, ' whole entire 
" ' premises,' [conveyed by the previous 
" grant to Berkley and Carteret] was to be 
" understood only the intire tract of land, 
" and the other clause, ' as far as in him 
" ' lycth,' made a doubt whether the Duke 
" had authority so far :" and while in doubt 
it was suggested that a remonstrance 
should be sent to his Royal Highness, 
shoiving the " incoavenience of siifferinr; 
East New Jersey to come up the river." 
The question involved was evidently the 
extending of East New Jersey " up the 
river," opposite Manhattan Island. No 
doubts seem to have been entertained as to 
the effect of the grant upon Staten Island 
and surrounding waters ; for the Duke, as 
if to set at rest all questions growing out of 
the formerly expressed boundaries, not on- 
ly repeated them and conveynd the eastern 
moiety of " the whole intire premises," but 
added, "together with all islands, 
"Bats, &c.," words not in the original 
grant [to Sir George Carteret], and insert- 
ed the further significant clause " As also 
"the free Use of all Bays, Rivers, and 
"Waters, leading unto or lying between 
" the said Premises, or any of them, in the 
" said Parts of East New Jersey, for Navi- 
"gation, free Trade, Fishing, or other- 
" wise." 
That these words were considered by the 



Council as covering Staten Island and its 
waters, is conclusive from the fact that Cap- 
tain John Palmer, the largest holder of 
lands on Staten Island under New York 
grants — one of the Council snbsequently, 
and present a' the meeting referre-'l to by 
invitation of the Governor — not esteeming 
his property there safe without a title from 
the proprietors of East Jersey, immediate- 
ly there'ifter applied to them for patents, and 
onthe'i'dth May following, obtained them far 
several tracts of land, covering moi'e than 
5.000 acres'' \e. J. Becords, Vol. 1, Liber 
A p. 185.) 

sir. Dawson considers this proceeding of 
Capt. Palmer as a precautionary measure 
merely, and " no evidence that he consider- 
" ed the pretended title thereto of the Pro 
"prietors as worth a straw" — and he 
thinks the Proprietors themselves consider- 
ed a compliance with his request " little 
"better than a farce," because, as he 
states, they said, " it may be of no ill con- 
" sequence, but rather of service in our 
"claim to that island." 

Mr. Dawson may have all the advantage 
accruing from his objection, although it is 
possible, could a reference be had to the 
lost minutes, that the matter would be pre- 
sented in a clearer light, but it must be 
borne in mind that this application from 
one intimately associated with the authori- 
ties of New York, was made fifteen years 
after Staten Island is said to have been 
"adjudged" to that Province. Gov. Don- 
gan himself is said to have taken out a Pa- 
tent for the lands he held on the island, 
{See Propi-letor' s Memorial to Gov. Morris, 
Oct. 13, 1719.) 



EASTEBN BOUNDARY OF NEW JERSEY. 31 

left out — " so far as in bim lieth " — Avere actually made the subject of 
comment. It is not usual to quote the whole of a document every time 
a portion of it may be pertinent to the subject under review, but the 
gentleman shall be favored in due time with an explanation of the phrase 
he refers to, as well as with further extracts from the grant itself. 

In that document the Duke sets forth, not only that he liad on the 23d 
and 24th June, 1664, conveyed New Jersey to Berkley and Carteret, {the 
legal force and vaJidity of which conveyance lie affirms)* and subsequently 
executed the other grants which have been referred to, exjjresshj^ so he 
says, as he had received it from the Kinr/^f with its "islands," "soils,'' 
"marshes," &c. ; but, also, that, in consequence of the partition made by 
the grantees of the said tract and siibsequent sale by Sir George Carteret 
of the eastern moiety, he grants and conveys anew to the twenty-four 
Proj)rietors, in whom the title then rested, " their Heirs and Assigns all 
" that Tract Share and Portion and all those Parts Shares and Portions 
" of all that entire Tract of Land, and all those entire Premises so grant- 
" ed to his said Royal Highness, * * * called by the name of East 
" New Jersey together with jj^^ cdl Islands Bays Mirers Waters Forts 
" Mines Minerals Quarries Royalties Franchises and appertenances what- 
" soever to the same belonging, or in any wise appertaining, &c., ^_^^ 
" as also the ^W°fi'eeus6 of all Bays Rivers and Waters leading unto or ly- 
" ing letween the said Premises, or any of them, in the said Parts of East 
" Nciv Jersey, for Navigation, free Trade, Fishing or othericise ^.^M-1 To 
" Have aj^d to Hold &c to improve and plant the said Premisses with 
"People and to exercise |^" all necessary Government _^31| therein, 
" whereby the Premisses may be better improved does and doth by these 
" Presents give grant assign and transfer unto the said," [naming the 
"twenty-four] "their Heirs and Assigns, Proprietors of the said Pro- 
" vince of East New Jersey aforesaid, for the time being |^" all and 



*'• By several good aud Buffldent Convey- in Grants and Concessions, /;^. 141-150.) 

" ances and Assurances under his hand and Moreover, the Supreme Court of the United 

" seal duly executed," is the language States in its opinion in the case of Martin 

used. vs. Waddell, says " The last-mentioned 

t Referring to the Lease and Release of '' grant [1674 from the King to the Duke] 

July, l(i~4, he makes his " intent and mean- " is precisely similar to the former in every 

ing " perfectly manifest. He says that the " respect," and further " The grant of this 

King having granted to him on 29th June, " territory, known as East New Jersey, 

1674, "the i?ai«i tract of land aud premises" " * * -vy.ig transferred to twenty-four 

conveyed to Berkley and Carteret in 1664 — "persons, * * who, by th- terms of the 

he on the 20th July, 1674, "did grant and " grant, were invested, within the portion 

" convey the MM? tract of land and preniis- " of the territory conveyed to them, with 

" es to the said Sir George Carteret," &c. " all tJie rights of property and government 

There was therefore, no intention of cur- ^- W ich had been originally confen^ed on the 

tailing any of the perfections of the first '•^ Luke of Jork by the Letters Patent o^ the 

grant by the omission of the words "isl- " .K'mg'." 
lands," "marshes," &c.—(See the Eelease 



32 EASTERN BOUNDARY OP NEAV JERSEY. 

" every such and the same Poicers, Authorities^ Jurisdictions, Goxernments 
'■^ and other Matters and Things whatsoever tchich by the said respective recited 
i' Letters Patents or either of them are or were granted to he exercised by ?iis 
" said Royal Highness his Heirs Assigns Deputies Officers or Agents in or 
" upon or in Relation unto the said Premises, tfec." „,^3 ll 

What rights of 2)i'oiierty, what prerogatives, i^ray, are retained here 
by the Duke, to become " historically " or in any other Pichciclian sense, 
united to New York ? And see, too, what Charles himself said in con- 
iinnation of this last mentioned conveyance " His Majesty doth hereby 
" declare his Royal Will and Pleasure, and doth strictly charge and com- 
" mand the Planters and Inhabitants, and all other Persons concerned in 
" the said Province of East New Jersey, that they do submit and give 
" due obedience to the Laws and Government of the said Grantees their 
" Heirs and Assigns, as absolute Proprietors and Governors thereof, t6c.*" 
This was under date of November, 1683. Need any thing more be said 
to show how entirely at variance with the facts is this "historical" 
theory. 

The writer's mode of disposing of Mr. Cochrane's arguments, based 
upon a passage from Ogilby's History of America, does not meet the ap- 
jjrovalof the " Member of the New York Historical Society;" and it is 
probable no greater satisfaction will be felt with the opinions he may ex- 
press resijecting the use made of that work by the gentleman himself. 

It is somewhat remarkable that such peculiar stress should be laid up- 
on a single paragraph written by one who "was never on this side of the 
Atlantic, whose ears were open to any " old-wives fables," and his pen as 
ready to record them, and whose sole authority for the details ot his map 
was the imperfect ones of Vischer and Vander Donck ; but, in a theory 
which discards " physical facts " it may be consistent to accept, as all 
sufficient authority, one whose knowledge of the waters he describes war- 
rants him in presenting Long Island Sound as on-e of the mouths of the 
Hudson ! ! But as his " elegant map " leaves out all appellations for the 
waters within Sandy Hook, and for convenience has the name of " the 
" Groote River " and its numerous aliases out at sea, just as it places 
" Zuydt River " off the capes of Delaware, Ogilby is considered an authori- 
ty of the first grade, omission to confer distinctive titles upon the waters 
which are the subject of discussion being regarded by the gentleman, as 
it was by Mr. Cochrane, much better evidence of the " intent and mean- 
ing " of parties than positive conferment of definite appellations. It is 
probable, however, that had his map been on a larger scale, he would 



* Grants and Concessions, p. 151. 



EASTERN BOUNDARY OF NEW JERSEY, 83 

have given to the waters within Sandy Hook their specific title, as did 
Vander Donck.* 

In this connection tlie writer feels bound to notice, and pointedly con- 
demn, the unwarrantaljle accusation Ijrought l)y the gentleman against the 
New Jersey Historical Society, of having mutilated, for sinister purposes, 
the portion of the map of^ Vander Donck in their first volume of their 
" Collections^ He says "while the words 'Port May and Godyn's Bay 
" have been very distinctly inserted in the proper place, the names of 
" the ' Groote River ' outside of the fwmer lime been studiously 
" omitted, and Tander Donck lias heen forced to say nothing whatever con- 
" cerning the Hudson^ citJiei' of its mouth at Sandy IIool; or elseichere.'''' The 
capitals and italics are the gentleman's own, and a cause which seeks for 
aid through the eft'ect of such imputations must be inherently weak. He 
hnmos that the map inserted in the volume referred to is only one-third 
of the original — just so much of it as could be brought within the limits 
of an octavo page, four inches by seven — and the reason why the names 
he refers to were not on it, was without doubt, the same with that — the 
writer has had the charity to suppose — which prevented Ogilby's insert- 
ing the names for the bay, namely, the "physical fact " that there was 
no room for them if the character of the map as a fac simile (as far as it 
went) were preserved. The implication, that the New Jersey Historical 
Society " had quailed before the testimony" afforded by the original map 
to the North River's emptying into the ocean, is simply ridiculous. f It 
may be safely affirmed that, the Society will never be ch'iven to ignore 
" physical facts" to establish any historical theory. 

The Gazette's correspondent has devoted much time and labor to veri- 
fying an opinion, expressed by the writer on a previous occasion,! that 
" with a little research a few like instances [to those educed by Mr. CocH- 
'• rane] might l)e discovered," of the application of the general title of 



* Mr. Dawsonregards the use of Ogilby's t The utter recklessness of this charge 
Map by the Commissioners of 1769 and the is strikingly apparent when the fact is re- 
MTiter's reference to it in a paper on the called that, when the map referred to was 
Northern boundary, as conflicting with the issued by the New Jersey Historical Socie- 
opinions of its value expressed in this con- ty, the boundaries between the two States 
troversy. In reply to this it is sufficient to had been definitely settled by the inter- 
say that few maps, books, or men, are alio- State agreement for thirteen years, and nei- 
gether worthless ; on some point each may ther the Historical Society, nor any individ- 
be perfectly reliable. The value of Ogilby's ual in New Jersey, desired or expected that 
map to the Commissioners of 1769 consist- the discussions which had preceded that 
ed in its corroborating, with ^Vander agreement should or would be revived ; — 
Donck's and Vischer's. their views as to nor was it presumed that it would ever be 
the position of the North-western point of necessary to collect (or manufacture, as is 
intersection with the Delaware, — but the implied,) documentary evidence in advance, 
advocates of Neiv Yorkclalms then, could not to meet an attempt on the part of New 
be made to think the evidence of the map of York to set aside that agreement. 
any account. {See N. J. Brief, pp. 37-29.) t See page 7. 

5 



34 EASTERN BOUNDARY OP NE"W JERSEY. 

"Bay of the North Kiver " to the expanse of waters between Sandy Hook 
and Staten Island. He has supplied " a few like instances," three or four 
in number, which establish nothing new, and do not controvert the fact 
that, what thus occasionally received a general appellation was at the 
same time considered, from its characteristics, devisable into smaller por- 
tions bearing specific titles. He has, besides, made diligent search 
among the contents of " Old Time's drag-net," and rescued from oblivion, 
perhaps, a score or more of extracts to jirove — what ? that the waters of 
the Hudson enter into the ocean at Sandy Hook. 

It is a favorite mode of procedure, with some disputants, to set up 
some fanciful and weak edifice of their own, which they would have the 
world believe is an antagonist's selected stronghold, and then to take 
great credit to themselves for demolishing it with ease. Such seems to 
have been the course of the " Member of the New York Historical Socie- 
ty," for the writer would remind his readers, that there has been no at- 
tempt on his part to controvert the " physical fact " that the waters of the 
Hudson mingle with those of the ocean at Sandy Hook.* That is a 
truth recognized by the terms of all the grants which have made the 
eastern boundary of New Jersey " the main sea and Hudson's River," and 
he is not aware of any other way in which the two can meet, unless, the 
gentleman's favorite authority, Ogilby, be followed and the junction be 
effected via Long Island Sound — the other mouth of the river. It is the 
homogeneous character of the waters filling the "Bay," and losing them- 
selves in the Atlantic at thatrpoint, which is denied; and ^/««i he be- 
lieves is a question impregnable to the attacks of any " historical " 
theory. But their dissimilar character is one ot the " physical facts " 
which Mr. Cochrane and his coadjutor would ignore ; the Hudson and 
the Hudson alone is to be recognized in those waters ; the peculiar influ- 
ences to which it has been subjected in its passage to the ocean having 
very materially increased its powers of absorjition, so that nothing in 
the shape of water can withstand its voracity — so fittingly symbolized 
by its " two mouths." 

Notwithstanding that Hudson himself, in the " narrow river to the 
westward " having diflferent tides and currents, discovered a stream dis- 
tinct from the river he subsequently ascended — although from that time 
to the present, that distinction has been recognized by the retaining of 
the " baptismal names " confeiTed at first, such as " Kill van Kol ;" " the 
Kills ;" ^'the Sea," or " the river which parts Staten Island and the main;" 



* Yet Mr. Dawson accuses the writer and ble to every one, in order that it might not 

the New Jersey Historical Society with be ever thereafter brought forward to prove 

mutilating Vander Donclc's Map tiventy —what they have never denied ! 
years ago— a map well-known and accessi- 



PJASTERN BOUNDARY OF NEW JERSEY. 35 

" the Sound ;" " Raritan Bay ;" " Saudy Hook Bay," &c., names called 
for by the position and physical character of the waters; and that, too, 
without any deviation from the practice, excepting by a few individuals, 
in a fe\v instances, during the period when the New York authorities 
were prosecuting their fruitless attempt to deprive New Jersey of a sea 
port : — notwithstanding that every map, conferring any title upon those 
waters conforms to this prevailing original nomenclature, or confers other 
distinctive appellations, entirely at variance with the idea that they were 
ever considered identical with the waters of the Hudson : — although the 
Staten Island deed, which, from its locating the island " i;i Hudson 
Ryver " is so prommcntly presented as confirming " the character of the 
"waters in question," although even that (despite the forced paraphrase 
with which its terms are accompanied in the article of the Gazette's cor- 
respondent)* places '•'■ ye Byver''^ only on "ye North" and has upon " ye 
" South ye Bay " — in the face of these and various other facts, both phy- 
sical and documentary, the Gazette's correspondent gravely asserts that 

'' the leading Cosmographers of the time, both English and Dutch [mean- 
ing Ogilby and Montanus, one copying the other, and both believing that 
in the New Netherlands could be seen "a kind of Beast which hath 
" some resemblance with a Horse, having cloven Feet, Shaggy Mayn, one 

' "Horn just on their Forehead, a Tail like that of a wild Hog, black 
" Eyes and a Deer's Neck," that fed " in the nearest wildernesses," togeth- 
er with " Buffles" or "Elands * h-- =1= subject to the falling sickness" 
&c., &c.,t that these leading CosmograiDhersJcoriciwrecZ in the ojujiioji that 
the Hudson discharged its waters through two mouths, the Narroios and the 
Kills ;" whereas there is not a particle of evidence that they had ever 
heard of either passage. Take the gentleman's own adoj^ted version of 
the extract from Montanus so often referred to, it reads thus: — " Among 
the streams the Manhattan, or Great River, is by far the chiefest, as with 
" two wide mouths icashing the mighty island Matouwacs [not Staten Isl- 
"and, be it observed] it empties into the Ocean. The Southern mouth is 



* THE TERMS OF THE DEED. " on Manhattans Island, on ye East'" [by 

" All that Island lyeing & being in Hud- the River " in " which it was and] " Long 

" sons Ryver Comonly called Staten Island, " Island, & on ye West " [by the River "in'' 

"& by the Indians Aquehonga Manack- which it was and] "ye Main land of After 

" nong^ having on ye South ye Bay & Sandy " Coll, or New Jersey ;" 

"point, on ye North ye Ryver & ye City of + Ogilby, p. 172, So desirous were these 

"New York on Manhatans Island, on ye " leading cosmographers " to give the cor- 

"East Long Island, & on ye west ye Main red delineations of what they describe, 

" land of After Coll, or New Jersey," that they supply an engraving of the beast 

THE PARAPHRASE. mentioned in the text, horn, tail, and all, 

" All that Island lying & being in Hud- and it is to be presumed that we are ex- 

" soft« i?j/®er ;" and bounded on " yfi <Soi/<A pected to believe, in consequence, that it 

" [by] YE BAT & Sandy point, on ye North existed " historically." 
" [by] TB ETTER & yc Citty of T^ew York 



36 EASTERN BOUNDARY OF NEW JERSEY. 

" named Port May, or Godjm's Bay ; midway lies the Staten Island and 
little higher the Manhattans," &c. What is there in this passage to war- 
rant any such statement as that above, as to the opinion of these "lead- 
ing Cosmographers ?" It is impugning the intelligence of the settlers of 
New Netherland to make these writers exponents of the extent of their 
knowledge respecting the province. As early as 1656, Vander Donck, 
after having examined the localities for himself, jjlaced the mouth of the 
Hudson at its junction with the East River, and Egbert Benson and the 
other New York Commissioners, in 1807, frankly acknowledged that such 
was the "common conception in regard to it;" and, by the way, those 
gentlemen were so little satisfied with the modern " historical character " 
of the waters West of the island that they labored to establish timt chan. 
nel as an arm of the " main sea,''^ connectmg with Hudson River in the 
upper bay.* In January, 1664, the Chamber at Amsterdam, was so much 
better informed about the River, than Montanus was seven years later, 
that we find it corresponding w^th the Directors and Council at New 
Amsterdam in relation to the " defensible condition of tJie mouth of the 
"river, both on Staten Island and on Long Island,"t and it is evident 
that, ten years after Montanus wrote, thelocalities were not much changed 
from what they were in 1656 and 1664, as we find Governor Andros, in 
December, 1681, mentioning Staten Island as situated "att the entrance 
" or mouth of the River to New Yorke."t 

In this connection it must be noticed that the " Member of the New 
" York Historical Society " has failed to exhibit a single document^ or name a 
single map that confers upon the waters west of Staten Island the name of 
Hudson Eiver, with the few exceptional papers, also adduced by Mr. 
CocnRANE, which have already been made the subject of comment,§ (in 
due time they will be again considered,) occurring nearly a century after 
the settlement, and having no value as proofs. But he should laiow, as 
well as the writer that, so far from all intelligent well-informed persons, 
English, Dutch and American in 1674, considering the Hudson's River 
as flowing on Mh sides of Staten Island, " Hudson's narrow river to the 
westward," and its connecting channel southward were uniformly refer- 
red to by other names ; among the " intelligent, well-informed persons" 
doing so, being Governor NicoUs, who speaks of both as " the sea be- 
" tween Staten Island and the main," and was so ignorant of the opin- 



* The original draft of the papers emanat- gentlemen from New Jersey. {Boundary 

ing from the New York Commissioners are Pajiers. Vol. IV.) 

in the New Yorli Historical Society's Li- t New York Colonial Documents, Vol. 

brary, and it is interesting to note the cor- II., p. 218. 

rections and alterations they received be- t Ibid. Vol. III., p, 310, 

fore being siibmittcd to the scrutiny of the § See page 8. 



EASTERN BOtTNDARY OF NEW JERSEY. 37 

ions of "leading Cosmographers " as actually to make the nortlicm 
boundary of some land on Staten Island " Hudson's River and the Kill 
van Cull."* Governor Andros even (in documents the gentleman 
HIMSELF quotes) calls the one "After Cull River," and the other "the 
Great Kill."t 

The reader's patience will not be tried by the barren enumeration of 
other grants and other documents showing the continuous use of this 
nomenclature. The records of both States abound in proofs beside those 
the gentleman himself has furnished; and, without consulting many 
other works, an examination of the " Calendar of Historical Manuscripts 
'■'■in the office of The Secretary of State at Albany ^^ cannot but excite sur- 
prise that he should have ventured upon the assertion that " from an 
"early day — as early as 1643, the waters of what we call * * * * 
'' ' The Kills ' * * * were considered and disposed of as waters of 
" Hudson's River — and that, without a single adverse witness, the same 
"opinion prevailed and the same action was continued until the surren- 
" der of the Colony to the King of Great Britain and its transfer to the 
"Duke of York in July, 1674." But having on a i^revious occasion 
gone over this ground,| the writer deems it unnecessary to traverse it 
again. Before passing to another topic however, he must be peiTaitted 
to notice the unwarrantable assertion that " the Map of the settled por- 
tion of East New Jersey in 1683" in "East Jersey under the Proprie- 
tary Governments " places " Constable's Hook " at the " southwestern extre- 
"mity of the neck, [Bergen Neck] to which point the waters of the Hudson 
" would have ieen necessarily recognized on his [the writer's] oion autliority 
" had he told ' the ichole Truth ' of the matter.'''' This, to say the least, is in 
worse taste than the accusation Ijrought against the New Jersey Histori- 
cal Society, of studiously suppressing the title of Hudson's River from the 
fac simile of a part of Vander Donck's map given in the same volume. 
Others are left to designate it as their sense of propriety may dictate. 

" Constable's Hook" or " Point" will be foundin all maps, going sufficient- 
ly into detail, to l^e the name from the earliest times conferred upon the 
northern point of the eastern entrance of the Kill van Cull. The Gazette's 
corresijondent knows this fact and understands the position of the " Hook" 
perfectly. The youngest tyro in geography well knows that names are 
placed above, or below, on the left or on the right of the localities to be 
designated as convenience prompts ; and it will scarcely be believed that, 
the above grave charge is based ujjon the circumstance that the engraver 



* Grant to Bollen & Co., Dec. 24, 1664. and, Sept. 23d, 1675— and to Capt. Billop'a 

t Warrants referring to Gov. Carteret's grant, March 25, 1675. 
pigs that had strayed across to Staten Isl- t See page 11. 



38 



EASTERN BOimDARY OF NEW JERSEY. 



of the map placed the name on the left of Constable's Hook, extending 
of course /7'0??i the southwestern extremity of the neck toicards the Hook. 
If such a statement as that above quoted is warranted on such grounds, 
it might with equal propriety be said that Vander Donck located "New 
Amsterdam " on the west side of the Hudson, because the name stretch- 
es across New Jersey ; or that Mr. Brodhead intended to place " Paulus 
Hook" on Newark Bay, or "Communipau" on Staten Island, because 
their names commence at these points on his map, or that the engineers 
who prepared the sketch of the Harljor of New York for the Coast Sur- 
vey Report of 1857, in placing " Constable's Hook " in a similar position 
to that which the words occupy in the map first referred to, had some re- 
ference " to the claims of modern New Jersey." All the proofs of the 
Hudson's" debouching " through the channel between Staten Island and 
the main, which can be deduced from such puerile assertions and argu- 
ments, the "Member of the New York Historical Society " is at liberty to 
appropriate ;* and also, all he may find in the fact that Bergen County 



* Mr. Dawson, considering himself par- 
ticulavly qualified to discern the " inten- 
tions " of others, presumes so far as to as- 
sert, notwithstanding what is said in the 
text, that the writer intended, by his map 
of 1846, to establish the location of Consta- 
ble's Hook at the western entrance of the 
Kill van Kull, and to him : 

" It does not appear proper, that such a 
" deliberate attempt to mutilate the testi- 
"mony afforded by the ancient records 
"of East Jersey, in order to sustain a 
"tfumped up claim to the waters in ques- 
"tion, should be allowed to pass unexpos- 
"ed; and the reputations of those who 
" have been thus guilty of tampering with 
" the evidence, in order to promote such a 
" claim, must necessarily abide the legiti- 
" mate consequences of such exposure." 

That " exposure " being effected in his 
estimation by a quotation from Scot's 
"Model of Government" and "Smith's 
New Jersey" and " Gordon's Gazetteer;" 
"three single gentlemen in one," Gordon 
copying Smith, and Smith copying Scot, 
and Scot himself being indebted to " Cap- 
tain Nicolls, Secretary for the Duke" for 
the information : who says, 

" To goe back to the South part of Ber- 
" ghenmck that is opposite to Staten Island 
" where is but a narrow passage of water, 
" which ebbs and flows between the said 
" Island and Berghen Point, called Consta- 
" bles Hook." 

"Berghen Point" was doubtless then, 
as noiv, used frequently as a general appel- 
lation for the whole of the southern part 



of the Peninsula between the Hudson and 
the Hackensack rivers, extending to the 
Kill van Kull ; and both Smith and Gordon 
rightly interpreted Scot, in considering his 
statement that "there are other small 
"plantations along that neck to the east 
" between it [Bergen Point] and a little 
"village of 20 families, &c.," — to refer to 
the settlements along the western shore of 
the bay between Constable's Hook and 
Communipau ;" Berghen Point" being used 
by Scot as identical with what was then and 
is now known.as "Constable's Hook" or 
" Constable's Point." 

"The reader will perceive," says Mr. 
Dawson, " that Constables Hook, in and 
"'ABOUT THE YEAR 1082,' zfftf not On the 
''harbor of Neiv York, as Mr. Whitehead 
"pretends in his Bejoinder, hut at the en- 
" trance to the Achter Col, or Vlewark Bay; 
" that the Map of the settled portions of East 
'■'■Jersey, about the year 16S2, by W. A. PP.! 

" WAS AND IS, THEREFORE, PERFECTLY COR- 
" RECT IN THUS DESCRIBING IT ; that in 

" March 1G82-3, when the Assembly of East 
"Jersey passed the Act for dividing the 
'' Province into four Counties, its rccogni- 
" tionof the waters which separated Staten 
" Island from the main, seaward, as far as 
" what was THiEii knotvn as Constables Hook 
" as Hndson's-river, virtually conceded all 
" that New York has ever demanded ; and 
"that Mr. Whitehead's grave denial of these 
"well-sustained facts and the impeachment 
" of his own Map, are not sustained, either 
" by contemporary Maps or contemporary 
" statements." 



EASTERN BOUNDARY OF NEW JERSEY. 



39 



was "to contaiu all the settlenunts between Hudson's river and Hacken- 
" sack River, beginning at Constable's Hook, and so to extend to the up- 
"l^ermost bounds of tlie Province nortbward, between the said Rivers." 
Those settlements being " Pembrepock," " Communipaw," " Paulus 



What Mr. Dawson means by " coutem- 
temporary maps " is not known, but not 
one has been found that does not place Con- 
stables Hook or Point at the eastern en- 
trance of the Kill van Kull. And as to 
"contemporary statements" the explana- 
tion of Scot's language, given above, 
shows that it is far from being established 
that he intended to place the Hook where 
Mr. Dawson wishes it. 

But let us see if at any other time than 
1G80, (which was the date of the Secretary's 
description, not 1G82) or by any other au- 
thority it was so located. Taking our first 
step backward eighty-five or ninety years, 
we find that Sauthier's Map " compiled from 
actual surveys deposited in the Patent office 
at New PorA," places the Hook or Point in 
its present position. This was published 
in 1779, and from 1776 to 1777 we have dif- 
ferent editions of the maps of Montressor 
and Pownal conilrmatory thereof. Again, 
let us go back one hundred and fifty years 
or more, and we find that the bounds of 
Bergen County began " at Constables Hook 
' and so run up along the Bay and Hudson's 
" River to the partition point, &c.," return 
ing "down the Pequannock and Passaic 
•' Riwera to the Sound, and so to follow the 
" Sound '0 Constables Hook.'''' {NevilVs 
Laws, 1., 1). 13,' Allinson's Laws, p. 11, 
January 21, 1T09-10.) Taking another step 
of nearly half a century, to Feb. 10, 1686, 
we find a tract of land laid out on Staten 
Island, beginning at the water side oppo- 
site to ("against'') Constables Hook, ex- 
tending westward along the Kill van Kull. 
{Albany Land Papers.) 

The position of the Kill von Kull, it is be- 
lieved, has never been disputed ; it has been 
allowed to remain where the " meaning 
and intent " of all parties placed it at first, 
and we see here, that in lliSO it ran 7vest 
from Constable's Point. Let us next take 
Mr. Dawson's strongest argument, the act 
of March, 1682-3, which said that " Bergen 
" County [was] to contain all the settlements 
" between Hudson's River and Hacken- 
" sack River, beginning at Constables Hook 
" and so on to extend to the uppermost 
" bound of the Province northward between 
" the said Rivers." (Lfaming & Spicer, p. 
229.) As the settlements were all north of 
the true position of Constables Hook, along 
the shores of the bay, it requires a cosmo- 



grapheras imaginative as Ogilby to locate 
it any where else from this description. 

But let us take another step backward to 
1674, and on Feb. 27, " we find Samuel Ed- 
sall mortgaging Constables Hook "situate 
on the west side of the North River "— {N. 
T. Col. MSS., XX TIL, p. 312.) 

Another step takes us back to 1658, Jan. 
30, to the Indian deed f^r the Bergen Pen- 
insula, the lines of which, after running 
westward from " the great rock above Wie- 
haecken," on their eastward return "run the 
"■ICill van Kull along unto Constables 
" Hook'' and f^-om the Hook to the place of 
beginning, ( Cafeftc^ar of Hist. JISS., Albany 
]). 190,) and a contemporaneous English ver- 
sion gives them " therefrom [above the isl- 
"and Sikakes] thence to the Kill van Coll, 
^^ and so along st to the Constables Hook." — 
{E. J. Becords Liber., J., p. 3. East Jersey 
under the Proprietors, p. 20.) 

There is a "physical fact " also to be 
overcome, of which Mr. Dawson does not 
seem to be aware. The tract called Consta- 
bles Hook is described in the mortgage of 
Edsall, m 1674, alluded to above, as an isl- 
and—which will be looKed for in vain in 
the tract of Bergen Neck, where he would 
locate it, but if he will consult Clark & Ba- 
cot's " Topographical Map of Bergen Coun- 
ty," he will find that, what is now known 
as " Platty Creek," and the adjoining 
murshy gronnA, formed, and to some extent 
still forms an island at the eastern entrance 
of the Kill van KuU, the true location of 
the Hook. 

As to the point which Mr. Dawson wish- 
es to establish, viz. : the junction of Hack- 
ensack and Hudson Rivers at his site for 
the Hook, that is eft'ectually disposed of by 
the unvarying description of the waters be- 
tween it and Staten Island as the Kill van 
Kull, through all times from the first refer- 
ence to the Hook that has fallen under the 
writer's notice, which is in a grant to Ja- 
cob Jacobson Roey in 1646 Butch Patents, 
Albany, G. 0.,p. 141. 

With these " well-sustained facts" before 
him, the reader can form his own conclu- 
sions as to whether Constables Hook was 
ever located, " historically " or otherwise, 
at the entrance to Newark Bay and whether 
the writer could have " intended " placing 
it there on his map. 



40 EASTEEN BOUNDARY OF NEW JEESEY. 

Hoeeck," " Bergen," " Hobuk," and perhaps one or two others, the near- 
est, " Pembrepock," being two or three miles north of Constable's Hook. 

Allusion has been made to the unbroken testimony borne by maps to 
the fact that distinctive api^ellations have always been borne by the 
waters in question, and that such appellations have never indicated any 
identity witli Hudson River ; and attention is now directed to the fol- 
lowing schedule of a series of the more prominent among them, covering 
the whole period from 1614 down, ui)on which they appear, whenever 
any names are conferred. 

1614. Five years after the discovery of the River by Hudson appear- 
ed the first map of the country of which we have any knowledge. On 
it the waters are not named. 

1616. Two years later we have the " Carte Figurative" referred to by 
Mr. Cociieane. On this, what is now known as Raritan Bay, has its 
distinctive title of " Sand-Bay." 

1621. A Map of "AmericoeSepteutrionalis Pars "was published by A. 
Jacol)z, on which the same title ajipears for that bay. 

1631. An Italian Map by Lucini, sujjposed to be of this date, has on 
it" Sand Bay Golfo," to designate the same waters. 

In 1648, as appears from " Plantagenet's New Albion," (p. 48) the bay 
was known as "Sand-bay Sea;" and subsequently, as has been seen in 
this discussion, it became known, in whole or in part, as " Coenraed's 
Bay" (as in the map of Joannes Jansiones, of uncertain date,) "Port 
May," "Godyn's Bay," &c., and in — 

1656. On Vandcr Donck's Map, the waters between Sandy Hook and 
Staten Island are named "Port May or Godyn's Bay ;" and so are they on 
a somewhat later Map by Matthoei Seutteri. 

1671. Ogilby's and Montanus's Map gives no names to the waters 
within Sandy Hook, but by titles outside indicates that the Hudson Riv- 
er there empties itself into the Ocean. 

1683. In this year John Reid was sent from England for the purpose 
of surveying a portion of East Jersey, and we have the result of his la- 
bors, in part, in "^4 Mapp of Rariton River, Mihtone River, South River, 
"■ Raway River, Bound Brook, Or em Brook, & Cedar Brook, with the Plan- 
^Hations thereupon, &c., d-c.'' On this valuable illustrative document, ap- 
pearing thus opportunely, being contemporaneous with the last grant of 
the Duke of York, to the Twenty-four Proprietors, we have "The 
Sound " between Staten Island and the Main, and for the waters South of 
the Island, " Part of Rariton Bay." 

From the appearance of Reid's Map, down to the Revolution, on all 
maps giving any titles to these waters, the same system of nomenclature 
is followed; on some of them " Sandy Hook Bay" appearing in connec- 
tion with " Raritan Bay," The best of these were the following : 



EASTERN 'BOUNDARY OF NEW JERSEY. 41 

• 

1760. Captain Holland's Map of "New York, New Jersey and Part 
of Pennsylvania ;" and in — 

1776. Governor Pownal's improved edition of the same map. On 
both of these we have " Raritan Bay," and on the last, in addition, 
" Sandy Hook Bay," "the Sound," and "the Kills." 

1779. With this year came the highly finished Map of the "Province 
of New York," by Claude Joseph Sauthier, " compiled from actual surveys 
^'- deposited^in the ■patent office at New For^-," on which we find that " the 
infectious waters of the Raritan " are allov/ed full sweep, as well as 
" Sandy Hook Bay," and " the Kills ;" and " York Bay " has the position 
of the present " Lower Bay." 

In 1778 and again in 1780 the French government issued correct and 
well executed maps of these waters, upon which appear the same intru- 
sive titles. 

It is unnecessary to trace this series of proofs to a later jjeriod. It is 
evident that these distinctive appellations did not originate in modem 
times, were not the result of " accumulating ignorance," as asserted by 
Mr. Cochrane, or of any " design " except to name distinctly, and dis- 
tinguish properly the waters to which they apply ; and if not universal- 
ly acknowledged, as correctly applied, why is it that not one map can be 
found, the maker of which, has been willing to stultify himself so far as 
to identify those waters with Hudson River, by conferring its name upon 
them ? All geographers " leading " or otherwise, have thus endorsed the 
"physical fact" that Hudson's River "debouches" only through the 
channel eastward of Staten Island; and one, if not more— Homaun of 
Nuremberg — who lived about the middle of the seventeenth century, 
with a " design," probably, to sustain "the claims of modern New Jer- 
sey," actually colors Staten Island with the same tint he gives New Jer- 
sey.* A sensible fellow was Homann : he believed in "physical facts," 
and did not adopt for a text book either Montanus or Ogilby. 

Whether previously initiated, or not, into the mysterious processes of 
absorption, by which sundry portions of New Jersey, as such, have dis- 
appeared from view, every one attending to this discussion will have 
seen that a failure to establish the existence, "historically," of what the 
natural configuration of the land and water has made 2^^>l/sicaHi/ impossi- 
Ue, necessarily involves the destruction of any theoretical attempt to ac- 
count, on moral or legal grounds, for the possession of Staten Island by 
New York, except through the concessions of the inter-State treaty of 
1833. So clear are the terms of the grants as regards all lands icest of 

* See Vander Viejde's Maps, 1763, In N. Y. fiia. Soc. Library. 

6 



43 EASTERN BOUNDARY OP NEW JERSEY. 

Hudson's River that, unless it can be made to run " historically " where 
it does not run naturally, there cannot be a shadow of pretence to title 
save by the effect of that instrument. Hence the anxiety to establish that 
point ; but, in order to lessen the effect of incontrovertible facts which 
prevent such a result, many irrelavent matters have been introduced, to 
confuse the enquirer after truth, leading to a w^ onderful array of so-call- 
ed authorities having little or no reference to the simple proposition of 
Mr. Cochrane, the refutation of which is admitted. To enter upon an 
examination of all these would entail upon the writer a vast amount of 
lal)or, with no possible accruing advantage to the reader. Two or three 
points, however, thought by the Gazette's corresj^ondent to be of particu- 
lar importance will be noticed, to show how, in reference to them as to 
everything else, he has failed to establish his views. 

He raises fdr example another flimsy structure, and making a grand de- 
monstration, brings column upon column to bear upon it, as if the fanci- 
ful assumptions and imaginary jDositions he combats as entering into its 
composition, originated with, or were verily taken by Jerseymen ; ex- 
pending an immense amount of labor in proving that Staten Island has 
always been in the possession and under the jurisdiction of New York. 
Who doubts it ? That is certainly a " historical " fact, wdiich no one 
questions. If it had not been, whence, and to what end, this discussion ? 
The wi'iter concedes the point fully, and thereby saves himself and his 
readers an interminable journey through a labyrinth of contradictory 
statements and conflicting authoi-ities, which the gentleman has skilfully 
planned — and wdthin wdiich he is left to rove by himself at his pleasure. 
Staten Island has always been in the possession of New York, despite of 
every proper interpretation of the grants to New Jersey, and having 
shown that the course of the Hudson is on the eastern side of the island, 
the unjustifiable character of that possession is fully established. 

An attempt is made to substantiate Mr. Cociirane's assertion that the 
" initiation of New Jersey's enter^jrising encroachments " upon Staten 
Island, took place in 1681 ; although such an assertion is entirely incon- 
sistent with the fact, as it is claimed to be, that the island was "adjudg- 
ed" to New York in 1669. How happens it that, as shown by the gen- 
tleman himself. Governor Carteret should have made a " contingent 
grant of land on Staten Island," in 1668* if no claim to it was set up 
before 1681 ? How happens it that Governor Nicolls should have an- 
nounced the item of intelligence he did, if the question of title was not 
then in abeyance ? 



* By inserting the words " in case Staten fishing license to John Ogden and others. 
Island falls within this government'* in a 



EASTEBN BOUND ABY OF NEW JER6ET, 43 

The writer regrets tliat he is obliged to diflfer from bis friend Mr. 
Brodhe.U), as to the importance to be attached to the statement of Gov- 
ernor Nicolls. It is with diffidence that he joresumes to question the de- 
ductions of one so well-informed upon all points of our colonial history, 
but he nevertheless is of the opinion that, while unsupported by any cor- 
roborative testimony, Nicoll-s' declaration, when his position is consider- 
ed, amounts to nothing in the face of constantly recurring indications of 
a still asserted, unabandoned title to the island, on the part of New Jer- 
sey. It is a noticeable fact also that, when "the claim was more vigor- 
ously prosecuted, not the slightest reference is made by any one to this 
authoritative settlement of the question years before. On a previous oc- 
casion* it was satisfactorily shown that the peculiar position in which 
Governor Carteret was i^laced on his arrival at ElizabetlitOAvn, in 1G65, 
the subsequent attempt at an exchange of territory, the reconquest by 
the Dutch and the temporary re-establishment of their authority, and 
other causes operated to postpone any positive enforcement of the right 
of New Jersey ; but though dormant it was ever considered valid, and 
was never surrendered until 1833. The wise course of the Provincial au- 
thorities in avoiding all collisions with New York by refraining from any 
forcible attempt to obtain possession, which would, undoubtedly, have 
proved fruitless from the greater power of that province, and in not pre- 
tending to a quasi possession by erecting the island into a county, in 
1683, is now assumed to be " a very significant fact," arguing that " Sta- 
" t'en Island was not considered at that time a part of New Jersey even 
" by its own Assembly." Under the benign teachings of New York, it 
is not likely that New Jersey will ever be guilty again of such a mistake 
as not to resist aggression from the start. 

It is a circumstance worthy of note that not a document is known to 
exist signed by the Duke of York himself, which calls in question the 
right of the Proprietors of East Jersey to the Island ; and not one, pro- 
fessedly issued under his authority, can bear any such interpretation for 
more than twenty years after the transfer to Berkley and Carteret, and 
not then until his relations to New Jersey, as we shall see, were material- 
ly changed.! He was ever ready to confirm his original grant of all the 



* See pages 18, 19. 1684, in which lie Bays, " Whosoever buys 
+ Although, as has been admitted, Staten " land in yt island, it being under yor gov- 
Island had been under the government of " ernemt, he must be lyable (as well as oth- 
New York, &c,, yet the first positive aver- " ers) to the laws thereof— (iV. Y. Col. 
ment that it was part of that province, Doc, III., p. 350,) and again under date of 
emanating from any one acting for the Nov. 1, 1683, " Staten Island without doubt 
Duke of York in England, which has fallen " belongs to ye Duke, for if Sr George Car- 
under the writer's notice, is in a letter from " teret had had right to it, that would have 
Sir John Werden to Gov. Dongan, Aug. 2", " beene long since determined, and those 



44 EASTERN BOUNDARY OF NEW JERSEY. 

lands iced of Long Island and Manhattan Island^ and document after doc- 
ument was issued for that purpose; for whatever may have been his 
faults and vices, and great they undoubtedly were, it is conceded that the 
Duke was sincere in his friendships. Those who would feign convince 
themselves and others that " the ojiiates of John Scot artfully discharged 
upon his drowsed senses," or any other influences foreign to his own un- 
biassed inclinations, moved him to part with New Jersey, forget or over- 
look the close relations existing between him and both Berkley and Car- 
teret — the former, his governor in youth and associate officially and oth- 
erwise through life ; the latter, one of his most intimate and constant 
companions, of whose hospitality he frequently partook — which led him 
to refrain from any act that could be construed as unfavorable to their 
interests. Through good and through evil repute he appears to have 
ever been true to them. What greater evidence could he have given of 
his disposition to quiet any adverse pretensions to New Jersey, or of his 
"intent and meaning" in relation thereto, than the repeated grants by 
which he confirmed the original transfer \ Note too, the prompt repudi- 
ation of Andros' proceedings towards Governor Carteret, and the grant- 
ing of the deed to the younger Sir George, in 1680, (of which more 
hereafter,) immediately on receiving Sir William Jones' opinion, to which 
reference has been already made, that, under the grants to Berkley and 
Carteret there was " noe reservation of any profitt or soe much as of 
Jurisdiction."* 

This opinion of Sir William Jones, by the way, and the action of the 



" who broach such fancys as may disturbe Can it be supposed that in this discussion 

" the quiett of possessions in yt island are of controverted points, Stat en Island should 

" certainly very injurious to ye Duke, and not have been mentioned ; or that the Earl 

•'WE thinke have noe colour for such pre- of Perth could have declared the Duke 

"■ fences.— {N. Y. Col. Hoc. III., p. 352.) " verie just" if he had denied the claim to 

Strange that Sir John could not have in- the Island ? 

formed the Governor how and by whom it * See page 28. Mr. Dawson does not 
had been" adjudged to New York" in 1669, think Sir William Jones, in his declara- 
if such was the fact. And in this connec- tion that the Duke in his grant to 
tion reference may be made to the letter of Berkley and Carteret parted with all 
the Earl of Perth and his associates, to Gov right to any profit or jurisdiction, had 
Dongan, dated Aug. 22, 1G84, narrating any reference " to the question of juris- 
what had occurred at an interview with the diction or right of government, as pretend- 
Duke held in consequence of the adverse ed"— but what is "jurisdiction" but the 
action of Gov. Dongan. They say ;" Wee right to govern? Webster defines it as 
" Doubt not both the Duke, and they [his " the legal power or authority of doing jus- 
" Commissioners! are fully convinced of tice in cases of complaint, the power of 
" our right in everie Respect Both of Gou- executing the laws "—as " Power of gov- 
" erment. Ports, and Harbours, free trade erning or legislating"— as " The power or 
"and Navigation, and having spoke io the right of exercising authority." The ques- 
" Duke, we found him verie just, and to ab- tion moreover, was submitted to Sir Wil- 
"Aorr the thought of alloiving anything to liam upon representations from the West 
" be done contrary ioivhat he hath pastu7i- Jereey Proprietors that they had bought 
'' der his hand and seaU.''—iN'. T. Col. their possessions " for a valuable conside. 
Doc. III., p. 348.) "ration, and in the conveyance poicers of 



EASTERN BOimDARY OF KEW JERSEY. 45 

Duke under it, explains the circumstances leading to the passage of the 
act by the New Jersey Assembly, in 1679, which the Gazette's correspon- 
dent so laborously misconstrues as manifesting " without complaint or 
" dissent * =*= a degree of resignation to an unavoidable fate, consist- 
" ent only with a corresponding knowledge that resistance to that fate 
" would be useless, that the Jurisdiction of the Duke and his servants 
" OVER THESE WATERS was Unquestionable." Well, it did not remain un- 
questionable very long as Sir William Jones and the DuJce made manifest* 
The act referred to guaranteed from loss, to the extent of £150, the own- 
ers of any vessel that " should be by any of the government of New York 
" arrested, detained, condemned and bona fide made prize of, for the 
" only cause of trading in this Province and not entering and clearing 
'■'■at New Yorlc^ <£r," which was nothing more nor less than one mode of 
doing what the Merchants of New York did themselves, viz. : op2)Osing 
the payment of the customs imposed by the Duke;t only with far greater 
reason, inasmuch, as Sir William Jones says, the Duke had reserved in 
New Jersey " neither profitt nor Jurisdiction." Yet the " Member of the 
New York Historical Society " devotes a whole column to prove that 
this action of the New Jersey Assembly, so consistent with a proper re- 
gard for their rights and calculated to hring about a legal decision thereon, 
was an admission of the Jurisdiction ot the Duke of York and his ser- 
vants over the "waters in c[uestion." 

Returning from this digression, let it be noted that in all the grants of 



'■'■ government are expressly granted, iox iXvAi "The Duke," eays Mr. Mulford in bis 

" only could have induced us to buy it ;" History of New Jersey (pp. 202, 203.) " had 

say they, " and the reason is plain, because received and held his American possessions 

"to all prudent men, the government of as a Proprietary Lord or Governor. He 

" any place is more inviting than the soil, held authority in connection with proper- 

"&c." {For this remarkable document see ty ; * * that property might be made the 

Small's Neiv Jersey, p. \1"; Grahame^s Uni- basis of political power, was indeed a vic- 

ted States, Vol. II., pp. 284 to 287.) Thus ious and dangerous principle, yet it had 

was the question of government distinctly been long acknowledged and acted upon in 

raised and responded to by Sir William England, and its propriety had not been 

Jones, and his opinion, — "about which" brought into question * * the grantees 

Mr. Dawson says the writer has " talked so of the Duke being put precisely in his situ- 

wildly"— according to Grahame (FoA 7/.,;^ ation, they of consequence became rulers 

286) led to the confirmation of the authori- as well as proprietors. * * The decision 

ty of the Proprietors, promoting " the of Sir William Jones was in confirmation 

whole of New Jersey at once from the con- of these views * * the question of right 

dition of a conquered country to the rank in the case is contained in so narrow a com- 

of a free and independent province, and pass, and is so plain and open to view, that 

rendering it in political theory ;!^e adjunct it seems scarcely possible that any individ- 

instead of the dependency of the British ual of common capacity in judging, should 

Empire." have fiiiled to discern it." 

" The Duke of York," says Mr. Bancroft * The act was passed April 3, 1679. Sir 

{Vol. II., p. 360) "promptly acquiesced in William Jones' opinion was given July 28, 

the decision, and in a new indenture re- 1C80. 

linquisfied every claim to the territory and t See New York Colonial Documents, 

the government.'' III., pp. 217, 246, 236, 289, &c. 



46 EASTERN BOUNDAIIY OF NEW JERSEY. 

the Duke of York, New Jersey included all the lands iced of Long Island 
and Manhattan Island and its eastern boundarjr is ever the same: the 
main sea and Hudson's Eiver. As it was in 1664, so was it in 1672 ; so 
was it in 1674 ; so was it in 1680 ; so was it in 1682 ; so was it in 1683. 
It was certainly ever his "intent and. meaning" that the veritable Hud- 
son, wherever it might really run, and not any other stream so baptized 
for a purpose, was to be the boundary; and he could find no land west of 
Long Island and Manhattan Island which was not also west of the river. 
Is it at all probable that, in the ftice of a continued claim to Staten Isl- 
and, such a material deviation from that line, as its excision from the 
lands originally conveyed, should have been intended by him without 
some indications of it appearing in a change of the description ? It 
seems evident from the corresijondcnce of Gov. Carteret with the govern- 
or of New York in 1681, in which tlic claim to possession is so distinctly 
made, that a more definite understanding with the Duke of York in re- 
lation thereto had been arrived at during the preceding year. And this 
is confirmed by the letter of Sir John Werden, the Duke's Secretary, writ- 
ten to Gov. Andros on 6th November, 1680, Avhich has been before allud- 
ed to. He informs the Governor that his Royal Highness had been pleas- 
ed "to confirm and release to the Proprietors of Ijoth moieties of New 
^^ Jersey all their andhis right to anything iesides the rent reserved ichich 
" HERETOFORE MAY HAVE BEEN DOUBTFUL Avlietlicr as to government^ or 
" public duties in or from the places within their grants.""* This had re- 
ference to the deed to be jjrepared for Sir George Carteret the younger — 
but as has been already demonstrated, it is not necessary to go further 
back than the date of the deed to the Twenty-four Proprietors in March 
1682-3. This was granted in accordance with the request of the Earl of 
Perthf for the express purpose, as stated in the instrument itself, of "Sei- 
" ter extinguishing all such claims and demands as his said Royal Highness, 
" or his Heirs might anywise have " to East Jersey. The peculiar fulness 
of this grant has been already made the subject of comment, but inas- 
much as the "Member of the New York Historical Society " has discover- 
ed some flaws therein irhich have escaped the learning and acumen of 
statesmen and laioyers of both England and America, it is well to refer 
to the document again. The gentleman recognizes the fulness of the 
rights and powers granted, but observing that the Duke in conveying 
them uses the jjlirase " so far as in him lyeth," he considers the whole in- 
strument simply as the Duke's " confirmation as Lord Paramount of 
" the Country [or Mesne Lord as he subsequently styles him] of the 



* And see Earl of Perth's letter, p. 44, cote. 
+ New York Colonial Documents, III., p. 329. 



EASTERN BOUNDARY OF NEW JERSEY. 47 

"change of Lessees of East Jersey, and liis permission to navigate the 
"waters 'leading unto or lying betw^een ' tlie lands thus leased to the 
"Projjrietors, from which the former lesseshad been carefully ex- 
"CLUDED." This exclusion is denied, but how confirmatory, is this very 
admission of the gentleman, of the fact that the Duke was desirous to 
remove all gi-ounds of disputation as to the rights of the Proprietors? 
but it is said that he had already granted all these privileges to the 
younger Sir George, and therefore had nothing left to convey. Let us 
unravel the truth of the matter. 

It will be remembered that it w'as broadly asserted that " all islands," 
"bays" "marshes" "soils" and various other concomitants of East 
Jersey had not been conveyed by the deed of 1674 because not speciallj'- 
enumerated, yet no one can doubt the "intention" of the Duke of York 
to convey all the lands west of Long Island and Manhattan Island and all 
belonging to them as fully as he had himself received them from the 
crown ; and it is somewhat curious that the Duke's Secretary in writing 
to Wm, Penn,* should have expressly nullified the doctrine that 
the failure to specify islands necessarily left them unconveyed — " neither 
"can I Judge," said he, referring to Penn's Grant, "how fiir such an 
"enumeration of particulars can include any more than ye genii 
" Boundaryes doe " — the insertions of "isles," subsequently, not neces- 
sarily adding any thing to the limits of the grant. But, notwithstand- 
ing the assertion made by the "Member of the New York Historical So- 
ciety," at the outset, that these items of property were never relinquished 
by the Duke, we find him subsequently admitting that tliey were relinquished 
to Sir George Carteret's grandson and heir in 1680; an admission forced 
from him by the dilemma in which he is placed by the fulness of the 
grant to the Twenty-four Projjrietors. Unless those rights wdiich he 
claimed to be remaining " with the Duke entirely unimpaired" could be 
got rid of, there was no way of avoiding the fact of their transfer to the 
Twenty-four. It will soon he seen how slight an impediment to their title 
w^as this presumed prior grant. f 



* New York Coloni.il Documents, III., p. " to the twenty-four Proprietors ;" that he 

280. cautiously couveyed, therefore, only " as 

+ Mr. Dawson may have the benefit of his " far as in him lteth," the lands and pre- 

exposition of this point. He says : raises which had been held by Sir Geo. Car- 

"It is evident from the facts, that the teret, the elder, " together ^.viWialllslands, 

Duke had already granted the same proper- " Bays, Rivers, Waters, Forts, Mines, Mi- 

ties, rights, and privileges, such as they " nerals, Quarries, Royalties, Franchises, 

were, to the younger Sir George Carteret; "and Appurteances whatsoever to the 

(.Release to Sir George Carteret, the young- " same belonging, or in anywise apper- 

er, September 10, 1G80;) that he possessed " taining ; and all the Estate, Eight, Title 

no portion of what he was asked by the " Interest, Reversion, Bemainder, Claim 

Earl of Perth, to release and convey '' and JDemand xvhatsoever^B.^ \fc\\ in Law 



48 EASTERN BOXTNDAIIY OF NEW JERSEY. 

There seems to be room for little doubt that the discussion of the Cus- 
toms question and the decision of Sir William Jones had drawn the at- 
tention of the Duke's legal ad\dsers to some of the dicta resiiecting the 
rights of i^arties having a navigable stream for a common boundary, and 
among them the plam proposition that even when the right of jurisdic- 
tion between two countries or states thus situated, extends to the middle 
of the stream only, the right to iise theichole stream for the purpose of navi- 
gation, trade and passage must exist as a right common to both parties 
whether expressly granted or not ; for in the grant to the younger Sir 
George, and subsequently in that to the Twenty-four proprietors, the 
Duke not only conveyed the Islands, Bays, Rivers, "Waters, &c., but adds, 
'• as also the free use of all Bayes, Rivers and Waters leading unto or 
" lycing between them ;'" in this, as in all the other documents emanat- 
ing from him, manifesting his desire to remove all grounds for cavilling 
or disagreement. No matter whether the principles of maritime law 
gave the privilege or not, he was willing the grants should be made so 
plain that all might understand his "meaning and intent." 

Sir George Carteret in his Will,— "to the intent " he said " That my 
" Debts, Funeral charges. Gifts, and Legacies, may be effectually paid " — 
gave to five distinguished courtiers, " their Heirs, Executors, and Ad- 
" ministrators, the whole Estate, Interest, Term and Terms, for years or 
"otherwise, which I or any other person or persons in Trust for me have 
" or hath," [along with other proj^erty] " all my Plantations in New Jer- 
" sey * * upon this Trust and Confidence that they and sur\dvor or 
" survivors of them, &c., * * do make sale of all the said i^remises, 
" and out of ye Moneys that shall arise upon such sale, pay and dis- 
" charge such of my said debts, &c.," — any surplus to be for the benefit 
and advantage of his grandson George, the son of his deceased son 
Philip.* 



"as in Equity, of his said Royal High- words: * * * "constitute and appoint 

" NESS, James, Duke op York, of, in, un- "him Deputy Governor of the said Prov- 

" to or out of the same, or any Part or Par- " ince, and of all Isles, Hirers, Islands and 

" eel of the same ;" and that the substance ''Seas within the same, or belongino 

of this conveyance to the Earl and his as- "thereto." {Commission, etc., July, 

sociates, was simply his confirmation, as 1683 — Learning and Spicer, 168 170.) 
Lord Paramount [or Mesne Lord] of the Of course, no others were ever claimed. 

Country, of the change of the Lessees of But how trifling these quibblings about the 

East Jersey, and his permission to navi- "intentions"' of the Duke of York in the 

gate the waters "leading unto or lying be- face of his reiterated assertions that he con- 

" tween" the lands thus Leased to the Pro- veyed to Sir George all he received from the 

prietors, from which the former Lessees King, within the bounds mentioned, and 

had been carefully excluded. That the with it also all the powers, rights and privi 

Duke's meaning was fully understood by leges with which he had been invested, 

the Grantees is evident from the terms of and in the face moreover, of the King's full 

their Commission to their first Deputy-gov- confirmation of this delegated authority ? 
ernor, Gawen Laurie, which was in these * E. J. Records, c. 2, p. 17 



EASTERN BOUNDARY OP NEW JERSEY. 49 

Sir George died early in 1679 and his Trustees-on the 5th and 6th March 
1680, conveyed his " Plantations in New Jersey," to Thomas Cremer and 
Thomas Pocock. The precise terms and object of this transfer are not 
known, as the instrument itself has not come down to us, but it is evident 
that it was considered as vesting in them for a time, at least, the full title to 
the province. It appears 4ilso that for some time its existence could not 
have been known to Lady Elizabeth Carteret or the Duke of York, or the 
latter would not, in September, 1680, have made the grant he did at that 
time to Sir George's heir. That grant, a's we have seen, was issued by 
him of his own accord, without any prompting from any one, certainly 
without the knowledge of the Trustees, purely out of regard for the in- 
terests of the family of his old friend Sir George, he having previously 
given a new grant ot similar import for West Jersey. Although the 
document was communicated by Lady Elizabeth to Governor Carteret, 
and made the basis of his action in 1681 as before adverted to, yet it was 
rendered inoperative h/ the fact that the title to the province had teen foi' 
some months in other jxtrties, and the " Member of the New York Histori- 
cal Society " is the first person in either hemisphere that has considered 
it as possessing any legal force.* The Trustees of Sir George — including 
the Earl of Bath, the, young Sir George's father-in-law, who would be 
likely to appreciate the value of such a document if it had any — the Earl 
of Sandwich, his maternal grandfather — Messrs. Cremer and Pocock, Lady 
Elizabeth Carteret, the original twelve Proprietors, the second twelve — and 
the Duke of York himself, all ignored the document by the execution or 
acceptance of the deed of March 14, 1682-3, in which they interchange- 
ably, under their hands and seals, certify to all the prior grants connect- 
ed with the province, but among which the deed of 1680 does not ap- 
pear. Moreover, a document from the Board of Trade to which is ap- 
pended the names of Sir Philip Meadows, Sir John Pollixfen, and Abra- 
ham Hill, whose acts, judging from the credence the Gazette's correspon- 
dent gives to them — are worthy of consideration, gives the following 
endorsement of the deed of 1682-3: "He the said Duke of York did by 
" Indenture dated the sixth day of August, 1680, grant and confirm the 
" Province of "West New Jersey, with all the Appurtenances thereunto 
" belonging to Edward Byllynge, &c., * * * and did in Ule vutnner h/ 
''Indenture dated the ith Sny of March, 1682 [nothing being said of the 
" deed to Sir George the younger] grant and confirm the Province of 
"East New Jersey, with all the Appurtenances thereto belonging, to 



* From the manner in which the docii- able supposition that it was either destroy- 
ment is entirely ignored it is a very reason- ed or formally revoked. 



50 EASTERN BOUNDARY OF NEW JERSEY. 

" James Earl of Perth, William Penn, Esqr., and several other persons, 
" in wTiom the title to the same then was, and to their Heirs and Assigns for- 
"ever — and ly each of the said Indentures did Ul'ewisegive, grant and assign 
" nnto the aforesaid resiwdive Grantees or Assigns all and every such, and 
" THE SAME Powers, Authorities, Jurisdictions, Governments, and 
"other matters and things whatsoever, ichich ly the fo^'ementioned re- 
'■'■ sped ive Letters Patents, or eitlier of them, were granted or intended to le 
'•'•granted to le exercised 'by him the said Bukeof Tori; his Heirs, Assigns. 
" Deputy Officers or Agents.''''* 

But how a1)out the phrase " So tar as in him licth ?" If anything 
more than a legal technicality, it simply means this ; that tHe Duke hav- 
ing already conveyed tJie ichole of New Jersey in common to Berkley and 
Carteret as joint tenants, and had subsequently given deeds in severalty 
for both East and West Jersey with diiferent lioundaries, the propriety of 
his giving another deed to other parties might lie questionable. But the 
writer is hajjpy to furnish a solution of the problem by the Commission- 
ers of New Jersey in 1769, the gentlemen whom the Gazette's correspon- 
dent compliments for their good judgment. They say in their brief :t 

" In 1683 East New Jersey became vested in Twenty-four Proprietors, 
"who thought proper to procure the Duke's Confirmation to them. In, 
" this Confirmation, the Did-e recites his first Grant to BerMey and Carteret, 
" and the partition of New Jersey, and, ' as far as in him lieth,' grants 
" and confirms to the Twenty-four Proprietors, all that Part, Share and 
" Portion, and all those Parts Shares, and Portions, of all that entire tract 
"of Land, and all those entire Premises, so grantedhy his Royal Highness 
" to the said John Lord BerlJey and Sir George Carteret, and their Heirs, as 
" in, hy, and itpmi the said Partition, was and were vested in the said Sir 
" George Carteret ; so that the words, ' so far as in him lieth,' did not im- 
" ply any Doubt in the Duke, whether he had' authority so far; but 
" whether he had a right to grant at all, as he had hefore conveyed all Neio 
" Jersey to Berldey and Carteret,^'' t&c. 

But why should the patience of the reader be longer trifled Avitli to es- 
tablish, what no Court in Christendom has ever doubted — (and the docu- 
ment has stood the test of an examination by the most distinguished on 
both sides of the Atlantic) — the validity, to the full extent of its tenor, 
of the grant to the Twenty-four Proprietors. * Historically " and legal- 
ly it will stand unalfected by any assaults from those, who finding in its 
ample provisions a most perfect title to all the lands " lying and being 
"to the westward of Long Island and Manhattan Island," would strive 
to ignore its efficiency by new discoveries in law and physics. 

* Learning & Spicer, p. 603. t P. 21. 



EASTERN BOUNDARY OP NEW JERSEY. 51 

Naturalists tell us that some odd fishes, when endeavoring to flee from 
some corner into which they may have been driven, have the feculty 
of ejecting into the waters an extraneous substance, which enshrouds 
them in such obscurity, that they etfect their escape. Such seems to have 
been the intention of the " Member of the New York Historical Socie- 
' ty " on introducing, towards the close of his article, the subject of the 
right of the Province of East Jersey to a sea-port. But he will meet 
with as little success through this device as through others he has adopt- 
ed. He cannot be allowed to escajje in a mist of his own creation when 
it is composed of such materials as the following statement : " The Pro- 
' ' ijrietors, whose principal purpose in purchasing the lands and settling 
" them was to make themselves independent in matters of Government 
" of all other persons," [not certainly of the Crown, for the right of ap- 
l^eal was expressly provided for,] " abandoned the project, and surrender- 
"ed their 'jjretended rights' to the Queen; while Perth Amboy was 
"overshadowed by New York, and New Jersey, in axl matters of 

" COMMERCE, THENCEFORTH, BECAME IN FACT, AS WELL AS IN LAW, EN- 
" TIRELY SUBORDINATE TO NeW YoRK." 

The writer has no desire to draw upon the courteous vocabulary of the 
Gazette's corresj)ondent. It is presumed from his animadversions u^jon 
others that he never '■'■ sivppresses^'''' never " ??iM^i7«fe6'," never hesitates to 
tell " the icTwle truth,'''' never " quails,'''' at any adverse testimony, and it 
may therefore be attributed to an oversight merely that he should not 
have discovered and communicated to his readers the fact that in every 
CASE ill which the right of East Jersey to a seaport teas endeavored to le 
wrencJiedfrom her, that right was established — and every attempt 
on the 2Mvt of New York to impose restrictions upon her Commerce, how- 
ever successful for a time through superior iovce, proved eventually abortive. 
Statements to this eft'ect have already been made,* but it seems a more 
thorough refutation is needed. 

The first occasion on which the rights of East Jersey in these respects 
were attemi^ted to l^e encroached upon by New York was, as we have 
seen, during the administration of Andros, in 1680 ; and we have also 
seen that the manoeuvres of New York were nullified by the opinion of 
Sir William Jonesf and the execution of deeds, ordered — " plainly to ex- 
" tinguish ye demand of any Customes, or other dutyes from ym [the Pro- 
"prietors] save ye rent reserued as at ye first.":t 

The next attemjit was made by the indefatigable Dongan, in 1G83, 
through reiterated intimations of what "might, could, would, or should 



* See pages 8, 36. $ New York Colonial Documents, III. 

t See page 28. pp. 285-6. 



52 EASTERN BOTINDAKY OF NEW .TEKSEY. 

be " done, to curtail the actual or presumed advantages of East Jersey. 
The Commissioners of the Duke of York's revenue were very willing to 
receive from him suggestions that might tend to increase that revenue, 
but, notwithstanding that the transfer of East Jersey to others naturally 
lessened the interest of the Duke of York in the preservation of the 
rio-hts he had originally conferred, yet Dongan's devices availed little un- 
til the relations of the Duke to the Province became changed by his suc- 
ceeding to the throne as James II., early in 1685. That event emljold- 
ened Dongan greatly. He found there Avere "great inconveniences in 
" having two governments upon one river;" that it " would doe well to 
"look into the last patent of East Jersey to see whether shijjping bee 
" obliged if they come into Sandy Hook to make entry at New York, 
" and informed the Board of Trade" that "we in this government look 
" upon that Bay that runs into the sea at Sandy Hook to bee Hudson's 
"River, therefore, there being a clause in my Instructions directing mee 
" that I cause all vessels that come into Hudson's River to enter at New 
" York, I desire to know whether his Majy intends thereby those vessels 
"that come within Sandy Hook;"* and he furnishes the " Member of 
the New York Historical Society " with an assortment of choice extracts, 
which, with others of like character, are distilled in his alemliic into first 
class authorities, although any candid and imjiartial historian would dis- 
card them as of little weight, emanating as they do, from the chief par- 
ties in interest, the aggressors, and being entirely e.v purte in their na- 
ture. 

Finally, Dongan becoming impatient, informs their Lordships "I caus- 
ed a vessel Avhich came to Amboy to come hither and enter." The Pro- 
prietors thereupon took the liberty of complaining to the King of this 
manifest infringement of his own conferred privileges, and after a fi-uit- 
less attempt by the Board of Trade, to whom the matter was referred, to 
get rid of a decision by sending the complaint to Governor Dongan to be 
answered, their Lordships, l)y an order of Council on 12th of July 1687, 
were comiiuinded to give the Proprietors a hearing, the result of which 
was the order of Council dated 14th of August, 1687, Avhich the gentle- 
man gives at length as most damaging to the East Jersey claims !t That 



* New York Colonial Documents, in., p. That all Ships and Vessels coming within, 

392. THE RIVER AND CHANNEL OP NEW YORK 

+ Analytical Index to New Jersey Docu- shall enter at His Maty's CUly and Fort of 
ments. p. 12.— The order is as follows, giv- New York, Wis. Maty is pleased, upon fur- 
en with all Mr. Dawson's embellishments of ther consideration, to direct us to signify 
italics and capitals— his pleasure to you That you permit all 

" After our very hearty commendations : Shijis & Vessels bound for New Perth,'''' 

Whereas by former Instructions given un- [Perth Amboy] ■'■ in His Majesty^ s Colmiy of 

to you His Maty has thought fltt to Order, East Jersey to go directly thither without 



EASTERN BOUNDARY OF NEW JERSEY. 53 

order on the contrary siMained them in every jiarticular. It confirmed New 
Perth as a Port of Entry, and Gov. Dongan was delicately informed that 
" His Majy is pleased, upon further consideration, to direct us to signify 
" his pleasure unto you that you permit all sliijis and vessels bound for 
"New Perth in His Majesty's Colony of East New Jersey to goe directly 
" thither witliout touching at New York, or being carried thither, until 
" further order." Thus did James the Duke of York confirm, as James 
II., the grant of 1682-3 by recognizing the right of the twenty-four pro- 
l)rietors in the waters which originated this discussion. But the gentle- 
man by his capital letters would convey the idea that this order was a 
direct recognition of the authority of New York over New Jersey, because 
the person to collect the customs should be appointed by the Governor 
of New York, or l)y '■^ the Beceiver General of His Majestys Beventie,'^ losing 
sight of the fact that New Jersey then Avas, as New Jersey has ever been, 
an upholder of law and order, the Proprietors ever inculcating " submis- 
sion and obedience to the King." Four years lefore the issue of this order, 
they instruct their Deputy Governor " to observe the Act of Navigation, 
" and to see that it be infringed in nothing as to what relates to the 
" Kings Customs or otherwise."* It was not the payment of duties to the 
King they objected to, but the restrictions imposed by New York upon 
their commercial jorojects, and these restrictions were absolutely re- 
moved by this order. Thus ended the second attemjit at sulijugation. 

The next attempt, and the last demanding notice, was made during 
the administration of Lord Bellomont, as Governor of New York, and 
furnishes the text on which the Gazette's correspondent hangs the erron- 
eous commentary which has been quoted. The first step towards this ag- 
gressive action commenced under Governor Fletcher. The Assembly of 
New York undertook, again, to impose duties upon the imports into 
East Jersey which, as Chalmers says,t "could be as little supijorted by 
any principle of equity or law " as those denounced and abandoned in 
1680, and the proceeding, of course, aroused the opposition it deserved. 

In 1694, the Assembly of New Jersey — it may have been in some spir- 
it of retaliation — passed an act for lietter regulating the trade of the 
Province,! which, although duly subservient to the "Act of Trade and 
Navigation," conflicted with the interests of New York, much to the 



touching at New York or being carried Imposts as are usually paid at New York 

thither, until further order. Provided al- for such shipps and their lading as are en- 

ivays that the Oovernnient of East Jersey do tred there," {Order, etc., August 14, 1687 

suffer such per son as tou or the Keceiver —Colonial Documents, iii, 428,502. 

Generall of His Matt's Revenue at * Learning and Spicer, ITl. 

New York/o?" the time being shall appoint, t Annals, p. 626. 

peaceably & quietly to receive and collect % Learning and Spicer. p. 342. 
for His Maty's use, the same Customs & 



54 EASTERN BOUNDARY OF NEW JERSEY. 

disturbance of Fletcher's equanimity; and lie hinted to the Lords of 
Trade that it was the intention of the Jerseymen to make "New Perth " 
a free port ; by which it is evident he considered the non-payment of 
duties to New York equivalent to paying none at all. Nothing definite, 
however, seems to have resulted from Fletcher's complaints, and in 1696, 
the right of East Jersey to its port was recognized Ijy the appointment, 
by the Commissioners of the Customs in England, of a Collector for Am- 
boy.* The Proprietors, however, were anxious to have an cud put to 
these constantly recurring annoyances, and in April, 1697, they obtained 
from Sir Croswell Levinz, and, in June of the same year, from Sir John 
Hawles — both " Crown Lawyers," and the latter subsequently an Attorn- 
ey and Solicitor General — concurrent opinions '■^ that no customs could le 
" i7n2)osed on the i^eople of the Jerseys otherwise than hy act of Parliament^ or 
" their own AssenMyy-\ For several months, the various officers of the 
crown were pressed for some ultimate and decisive action that might re- 
lieve New Jersey from the aggressions of New York, with A^arying suc- 
cess. There was evidently a wide difference of opinion among these 
functionaries; for while in one month (October 21, 1697,) the Commis- 
sioners of Customs ordered Mr. Randolph, the Surveyor General of Cus- 
toms in America, to appoint officers to collect duties at Ijoth Amboy and 
Burlington — thus sanctioning as Lord Bellomont says, in one of his dis- 
jjatches, the establishing of two Ports that were to prove "a destruction 
to the trade of New York,"J the next month (November 24,) the Council 
upon a representation from the Board of Trade issued the order, upon 
which the ''Member of the New York Historical Society" dilates, deny- 
ing the jjrivileges of a port to Amboy, and exhibiting greater ignorance 
of the localities than the presumed intelligence of the members would 
lead us to consider possible.§ But there was an olijcct in view, to efibct 



* Nov. 21, Analytical Index New Jersey "have two Ports, independent on each otli- 

Documents, p. 14. " er, in one and the same river, or within 

t Chalmers Annals, p. C26. Analytical " the same capes, or outlet into the sea ; 

Index, New Jersey Documents, pp. 15, 10. " such a practice being manifestly liable to 

East Jersey xmder the Proprietors, p. 141, '• great inconveniences. 

&c., Contributions to East Jersey History, " That Perth Amboy lies on one side of 

p. 295. " the mouth of the same river which runs 

X New York Colonial Documents, IV., " by the Cittie of New York (that river be- 

p. 305. "ing divided in the mouth of it by an isl- 

§ Analytical Index, New Jersey Docu- "and called Staten Island) and is within 

ments, p. 10. To show the positions they " the same capes." 

assumed, and from which they were so ef- And in Feb. 23, 1697-8, the Lords addres- 

fectuiilly driven, the following extract is sed the Earl of Bellomont, then Gov. of 

given as quoted by Mr. Dawson. The Board New York, as follows: 

of Trade in their Report upon which the " Since your Lordship's departure from 

order of Nov. 25, 1697 was based, say, " hence the proprietors of East and West N. 

"That it is, in no place that we know of, " Jersey having been very pressing for the 

" either in England or elsewhere, usuaU to " privilege of Ports in those Countries, we 



EASTERN BOUNDARY OP NEW JERSEY. 55 

which the means employed, needed not, they thought, to be closely criti- 
cised. With the flight of James II. from England, in December, 1688, 
and the recognition of William III. as the Sovereign, in February, 1689, 
old things had 'passed away, all, so far as the jjersonal^ relations of the 
Sovereign to New Jersey were concerned, assumed a new aspect. The 
questions in which she was interested had not reference thereafter so 
much to titles to, and boundaries of, the domain conveyed by the Duke 
of York, as to the extent of the Sovereignty he had a right to transfer 
with that domain. The surrender of the government to the crown was 
the object sought, and hence arose many of the delays and disappoint- 
ments to which the ProiDrietors were subjected in relation to the Port 
question; they " thought it best to join both together" as the Lords of 
Trade said, in one of their letters to Lord Bellomont, supposing that 
rather than endanger the one the Proprietors would abandon the other,* 
but their schemes were destined to be frustrated ; for although the gov- 
ernment was eventually surrendered by the Proprietors, their right to the 
Ports was j>^'eviously conceded and legally estahlkhed. It came about in this 
wise. The instructions of Lord Bellomont, who entered upon his duties 
in April, 1698, were in accordance with the views enunciated by the 
Council as above stated, and he bent all his energies to enforcing them. 
Governor Basse, in New Jersey, as firmly asserted the rights of that Pro- 
vince, and his bold determination to sustain them seems to have excited 
no little sur2)rise among the officials in England. The intelligence of his 
refusal to heed the order of Council, reached Secretary Pojjple in Decem- 
ber. He at once wished to know what the Lords of the Treasury had 
heard about it, and was desirous to have the Commissioners of the Cus- 
toms inform the Board of Trade to what conclusions they had come. 
Well, in^February, 1689, the Commissioners came to the same conclusion 
that they had evidently amved at before, that the inhabitants of East 



" have been obliged to enquire carefully in- The Lords signing this were, J. Bridge 

'•to their pretended right thereunto, and water. Ph. Meadotvs, Wm. Blathwayte, 

" to lay our opinion before His Majty, that Jofui Pollixfeii and A. Bill — those in italics 

"they have no such rights, and that it is being the same individuals whom we have 

" not convenient it should be granted to seen (page 49) confirming the deed to the 

" them ; upon which His Majty having been twenty-four proprietors. 

" pleased to GIVE dirbctions according- *N. Y. Col. Doc, IV., p. 546— They say, 

" LT, and a copy of our representation be- in reference to a certain representation 

"ing inserted in the order of Council made laid before the King— "you will perceive 

"thereupon, we send you herewithall a " the use we made of their proposal for a 

" copy of the said order, that you may un- " tryal about the Port of Perth Amboy, by 

" derstand the reasons of that determina- " bringing their right of government into 

"tion, and take care that the rights "the same question; a matter in which 

" AND PRIVILEGES OF New YoRK BE NOT " they are vcry tender, as being sensible of 

" INFRINGED."— i\^. F. Colonial Documents, " the weakness of their title. And we there- 

IV- 298. ^'- fore thovght it best to joyn both together,'''' 



•56 EASTERN EOUKDAKY OP NEW JERSEY. 

Jersey should ie released from the payment of duties to New Torh. In March 
Mr. Secretary expressed a wisli that the Lords of the Treasury would in- 
form him what they intended to do, and eventually'^ — not to jirolong 
the narrative unnecessarily — that course was adopted which was entirely 
in accordance with the wishes of the Proprietors leading to a result direct- 
ly opposed fo if/ie cj^Z/i/oHS of the Lords of Trade for which they are so 
highly complimented by the Gazette's correspondent. " A careful peru 
"sal of the 'opinion ' of the Board of Trade," says the gentleman, "and 
" of his Majesty's order in Council which was hased. on tJtat ^ ojnnion ' would 
"shed some light on the ridiculous pretences of some who have assumed 
" to speak in behalf of the 'pretended rights ' of East Jersey, on other 
"subjects as well as on this." Indeed! Well an ojjportunity was afford- 
ed, not long after the circumstances above narrated, to a dignified body 
in Westminster Hall to "j^cruse" that opinion, and to express an opinion 
upon it, and we will see what light that opinion shed " on the ridiculous 
pretences of some." 

Lord Bellomont, "feeling himself sure of his Majesty's" support, 
commenced a course of procedure which resulted in the forcil)le seizure 
of a vessel belonging to Governor Basse himself, lying in the harbor of 
Amboy.f A suit was brought in the Court of Kings Bench, to recover dam- 
ages for this illegcd seizure, in which the whole question as to the right of 
East Jersey to a port was discussed ; and the Court so far from finding 
that " the rights and privileges of New York" had been ''infringed" 
I'endered a verdict in favor of Basse for several hundreds of pounds ster- 
ling. Lord Bellomont therefore found it necessary to change the tone 
of his correspondence considerably. "Your Lordshijjs' directions to 
" me," he wrote in October, 1700, " will not now need to })e complyed 
"with, since the Proprietors have carried the cause in Westminster Hall, and. 
" obtained a freedom of Port for Perth Amboy," and again in No- 
vember, he said, " Mr. Basse has had great good fortune in his tryal, ujj- 
"on the account of my seizing the ship Hesther, at Perth Amboy in East 
" Jersey, to have recovered such great damages of the King * * * * 



*See Anal3'tical Index to N. J. Doc, pp. would have her cleared at this Port, but he 

20-27. refusing so to do, we are going to have her 

t " Mr. Basse, the Governor of the Jer- tried. * * * Mr. Basse sent me word he 

seys, in contempt of the orders your Lord- had positive orders from the Proprietors 

ships formerly sent to me, loaded the ship not to yield on no account to any orders I 

Hester at Perth Amboy, in East Jersey, and had received, and he threatens to try in 

was sending her on a voyage ; on notice Westminster Hall whether Perth Amboy 

whereof, I sent Mr. Hungerford, one of the bee a Port or no, and to sue me for damag- 

present Commissioners, and one of my es."— (iorti BeUmnont to the Lords of 

Lieutenants with forty soldiers, and seized Trade, Dec. l-^,\%%i, N. Y. Col. Doc, IV., 

and brought the ship away. I have since pp. 438, 439 : see also T'-, pp. 546, 605, 777, 

offered to restore the ship, pro^'ided Basse 856, &c.) 



EASTERN BOUNDARY OF NEW JERSEY. -i ' 

" with what conscience such extravagant damages were awarded for that 
" ship is more proper for your Lordships' enquiry than mine.'' Doubtless 
their Lordships did enquire, and liecame satisfied that the authorities of 
New York had not " within the capes," the supremacy they had been 
foolish enough to claim for them.* Thus was the right of the Proprie- 
tors of New Jersey to the full enjoyment of Commercial Ports within 
their respective provinces fully established,! and what becomes of the 



* Messrs. Pollixten, Hill, and Meadows, 
and their associates, after getting the Earl of 
Bellomont into this awkward position witli 
regard to the ship Hester, and issuing that 
wonderful "opinion" which excites Mr. 
Dawson's admiration, very apologetically 
say to the Earl on April 29, 1701 : '• and as 
for Mr. Bass, it was not in our power to 
hinder those proseedings of his about the 
ship Hester ; but zve did all that in us lay to 
defend his Majesty^s right in that cause, tho'' 
thesvccess did not ansiver expectation.' '-{N. 
Y. Col. Doc. IV., 856,) 

t Mr. Dawson has since endeavored, in a 
column of his paper, to refute this asser- 
tion ; the substance of his remarks being 
an ampliilcation of the point of the enquiry 
' why did the Proprietors, if their right to 
ports was so fully established, so humbly 
crave the favor from the Crown on surren- 
dering the government ?' The answer to 
which is simply this. The ownership of 
the lands and waters constituting New Jer- 
sey conferred no privilege of the kind. 
The right to establish ports for " entering 
" Ships and Importing Goods there and Ex- 
" porting Goods from thence," was a gov- 
eramental right— one of those which they 
surrendered— and hence they appeal to the 
"justness and goodness " of the Crown, to 
renew to them the advantages flowing there- 
from, which the Courts had decided they 
possessed previous to the surrender. If the 
people of any place in the United States 
should think it for their interest to have 
their town made a Port of Entry, their 
first step would be to appeal to Congress 
and throw themselves on the "justness and 
goodness" of the two Houses, for in no 
maritime country are Ports of Entry allow- 
ed to be established at the mere will of 
parties desiring them. 

Notwithstanding Mr. Dawson's asser- 
tions to the contrary, the privilege was 
GRANTED, an fZ /row that time down, at no 
period, unless from accidental causes, has 
Nexv Jersey been without its Ports, having 
their respective Collectors of Customs and 
the commercial facilities bel07iging to '■^ Ports 
of Entry.''' Mr. Dawson says, " that nei- 

8 



ther in the surrender from the Proprietors 
" of their pretended Right of Government, 
" nor in the Queen's Acceptance of the Sur- 
" render, nor in her Instructions to Lord 
" Cornbury as the first Koyal Governor, 
"was the solicited privilege granted or 
" even mentioned.'' As to the first two 
documents, it was not necessary that they 
should contain a specific reference thereto, 
but if Mr. Dawson had more closely scruti- 
nized the Instructions to Lord Cornbury, 
on the very pages of Learning and Spicer 
from which he quotes, he would have seen 
passages to this efiect — 

"* * You are therefore, in the settling 
" of a Public Revenue as before directed, to 
" propose to the Assembly, that such Cus- 
" toms, Duties, and other Impositions be 
" laid upon all Commodities imported or ex- 
'' ported in or out of our said Province of 
''Nova Cxsarea, or New Jersey, as may 
" equal the charge that is or shall be laid up- 
" on the like Commodities in our Province 
" oi'iifiwYoT^" —{Learning and Spicer. p. 
625.) Again—" And that we may be better 
" informed of the Trade of our said Prov- 
"inceyouare to take especial care that 
'' due Entries be made in all Ports in our 
" said Province, of all Goods and Commod- 
" ities, their Species or Quantities, Import- 
" ed or Exported from thence, with the 
" Names, Burden and Guns of all ships im- 
" porting and exporting the same, also the 
" names of their Commanders, &c., &c.," 
" {Ibid, p. 637.) and in the Governor's Com- 
" mission, he is expressly authorized to or- 
" der and appoint * * such and so many 
" Ports, Harbm-s, Cayes, Havens, and other 
" Places for the Convenience and Security of 
" Shipping, and for the loading and un- 
" loa'iing of Goods and Merchandise, as 
" with the advice and consent of our said 
" Council, shall be thought fit and neces- 
" sciry.''— Ibid, p. 655.) 

It is therefore abundantly evident that, 
although the Proprietors did not, " to the 
full extent of their wishes "—as Mr. Daw- 
son quotes from " Contributions to the 
Early Bis'ory of Perth Amboy "—o\>t&in 
such ample written stipulations from the 



58 EASTERN BOUNDARY OF KEW JERSEY. 

arrogant assumption of tlie "Member of the New York Historical So- 
ciety " that ^'' New Jersey hi all matters of commerce, tliencefortli, [after the 
" order of November, 1697] hecame in fact, as icell as inlaw, entirely sub- 
ordinate TO New York ?" On the contrary, from that time to the pre- 
sent there has not been a period in which the commercial relations of 
East Jersey have not been entirely independent of New York ; being sub- 
ordinate only to the will of a common Sovereign. 

The writer has not thought it necessary, to burden his pages with re- 
ferences to authorities for all the individual facts stated bearing upon 
thispomt, as (thanks to Dr. O'Callaghan's well-constructed Index,) those 
not supported by the specific works he has referred to, may be readily found 
sustained by pages of the New York Colonial Documents overlooked 
by the Gazette's correspondent. Neither has he thought it necessary to 
enter upon a discussion as to the precise nature of the title given by the 
Duke of York to the grantees of East Jersey, as the question has no- 
thing to do icith the matter at issue. He Avill say, however, for the sat- 
isfaction of the gentleman, that if in error (as he may have been, as he 
is no lawyer,) in styling that title a " fee simiile," he was led into it lyy the 
DuJce of Yorh himself who states in his grant to George Carteret the 
younger, that the '■'■fee siinjyle of Lord Berkley's Moyetye " was at that time 
in Messrs. Penu, Laurie and Lucas. Both Moities were held by the same 
tenure, and the Duke, or his legal advisers, therefore intended to convey 
a fee simjjle title, or these individuals could not have had one.* "La- 
tent and meaning" it will be remembered, were to receive particular at- 
tention in this discussion. But as to this matter of title it is enough to 
know that all the lands " to the westward of Long Island and Man- 
hattan Island with their islands, bays, rivers, waters, &c.," and the 
" free use of all bays, rivers, and water leading into or lying between the 
" said premises " were conveyed, or, if it suits the gentleman better, 
were intended to be conveyed by the Duke " in as full and ample man- 
ner " as the same were received by him both as to soil and government ; 
and Charles 11. himself, as we have seen, declared the grantees to be 
"absolute Proprietors and Governors thereof." If subsequent 



CrowTi in relation to their Ports, as they * The writer may also shelter himself 

thought would best conduce to the welfare under the broad legal wings of Richard 

of their province, yet " success attended Stockton, who in the case of Arnold vs. 

their efforts "—and that, he has no warrant Munday, in the New Jersey Supreme Court, 

for asserting, as he does in his usual cour- used this language :— " The terras of the 

teous manner, that " their hopes and their grant are as extensive as the English lan- 

" desires were alike disregarded, the gov- guage affords, and as English language 

" erument and its representatives cared as could put iuto a conveyance. It conveys 

"little for ' Jerseymen' or their pan icular ' all the lands, soils, &c., &c., and appur- 

" interests, as the ' Jerseymen " of to-day tenances ' iw /"eg simple, together with the 

" care for the interests or the convenience Power of Government, &c.''—{,Halsted''s N. 

" of any other persons or communities." J. Eeports^ I., p. 45.) 



EASTERN BOrrNDARY OF NEW JERSEY. 



59 



sovereigns thought he overstepped his prerogatives in so doing, that fact 
does not militate against the " intent and meaning " of the grants as in- 
terpreted by the Duke of York himself* 

The reiterations of the "Member of the New York Historical Socie- 
ty " to the effect that " Staten Island and the waters in question were 
reserved" at any time, are utterly unsubstantiated. They are based 
upon an assumption, which has been denied throughout this discussion, 
that Hudson River runs zcest of the island ; an assumption which he ad- 
mits has been disproved by " physical facts ^' and which the writer holds 
has been disproved also by " historical facts." To verify the gentleman's 
assertions, he must first make it apjDarent that neither island nor watei's 
" appertained " to New Jersey, which he has not yet succeeded in do- 
ing. 

The writer is now done Avitli this controversy. He Avas induced to en- 
ter upon it, and led to continue it, solely from a desire to relieve his na- 
tive State trom the imputatious and asjDersions cast upon her,t and he rc- 



* Mr. Dawson set out to prove that the 
waters under discussiou were " historical- 
ly" the waters of Hudson River — but before 
concluding his paper entered upon a legal 
disquisition as to the nature of the title 
transferred by the Duke of York, a question 
which, as is stated in the tex.t, has nothing 
to do with the historical character of the 
discussion. The writer leaves the subject 
for the consideration of those familiar with 
legal technicalities, but there are points 
that even the least informed on such mat- 
ters can without difficulty recognize as es- 
tablished beyond controversy, and he con- 
ceives, Chief Justice Tanet said, all that 
was necessary on this question of title, in 
the opinion of the Supreme Court in the 
case already referred to " Martin ?\«. W'ad- 
dell "—"The estate and right of the King," 
said the Court, " passed to the Duke in the 
" same condition in which they had been 
" held by the crown, and upon the same 
•' trusts. Whatever was held by the King 
" as a prerogative right passed to the Duke 
"in the same character. * * * It ap- 
" pears by the special verdict, that all the 
" interest of the Duke in East New Jei'sey, 
" including theroyalties and poivers of goc- 
" eivirnent, were conveyed to these Proprie- 
" tors, as full;/ and amply and in the same 
" condition as they had been granted to him,, 
" and they had tlie same dominion and pro- 
" priety in the bays, and rivers and arms 
" of the sea, and the soil under them, and 
" in the right of fishery that had belonged to 
" him under the cu'iginal charter * * and 
" being thus entitled, they in 1702, surren- 
" dered and yielded up to Anne, Queen of 



" England, and to her heirs and successors, 
"■' all the jMwers and authorities in the said 
^^ Letters Patent granted, dBc." These were 
the " pretended rights " that Mr. Dawson 
so frequently refers to. 

t Throughout the discussion New Jersey 
has been referred to by the New York gen- 
tlemen always in contumelious terms. Ac- 
cording to the newspaper reports, on the 
morning after the reading of Mr. Coch- 
rane's paper, he " introduced his subject by 
" humorously remarking that he was doubt- 
" less exhibiting much temerity in ventur- 
" ing into an enemy's country ; for although 
" not in a state of war with New Jersey, 
" it was generally conceded that she was 
" out of the United States," at which very 
new and appropriate jest there was consid- 
erable "laughter;" and the extracts given 
from his paper, show that, this spirit of 
superciliousness with which he approached 
the consideration of a subject which he 
considers of grave importance, continued 
to be manifested throughout. But it was 
left to Mr. Dawson to exhibit in full mea- 
sure the feelings of hostility entertained 
towards the State. As Mr. Cochrane 
commenced his labors in terms of dispar- 
agement, so his coadjutor concludes his 
as follows : " She [New Jersey] still stands 
"in all her naked deformity, as much an 
"object of general contempt, save to the 
" few who habitually minister to her abom- 
" inations as Suffolk's ' Lean-faced Envy in 
"her loathsome Cave.' " 

What New York may have gained by 
having such advocates the future will dis- 
close. 



60 EASTERN BOTINDARY OF XEW JERSEY. 

grets that her defence could not have been confided to abler hands. The 
results elicited are as follows : 

I. It was asserted that " the Hudson lliver empties itself through its 
" two mouths, the Narrows and the Kills, into the Bay of New York." 
He has shown that this never was and never will be trve, inasmuch as not 
a drop of the water of the Hudson flows either way through the channel 
west of Statcn Island ; and this has leen achioidedged hy his opponents as 
an incontrovertible "^;/i?/s/frtZ/rtc('."' 

II. It was asserted that the Grants of Charles II. and the Duke of York 
in 1664, were rendered null and void by the reconquest by the Dutch in 
1673 and other causes : He has shown that neither the King nor the 
Duke ever called in question their validity, but were ever ready to give 
any other guarantees requested of them. 

HI. It Avas asserted that the Propnetors of New Jersey derived their 
rights SOLELY through the grants of 1674. He has shown that subse- 
quent grants, more precise, more full, and more comi)lete, particularly on 
the points in which those of 1674 are asserted to be deficient, were subse- 
quently given for the very purpose of removing all doubts and quieting 
all disputes as to the "intent and meaning" of the grantors; and more- 
over, that these subsequent grants have repeatedly been recognized in 
courts of the highest character on both sides of the Atlantic as conferring 
all the rights and privileges claimed by Ncav Jersey through them, and 
that the ultimate decision of the Supreme Court of the United States, 
upon the mutual rights of New York and New Jersey under them, would 
have long since been obtained had not New York re/used to submit to 
that Court the questions at issue. 

IV. It was asserted that the Duke of York, in 1674, retained to himself 
certain powers of government, and certain portions of the tract previous- 
ly conveyed, which became thereafter part of his Colonial possessions 
and " ai'c still to be considered ' historically ' as belonging to the State of 
New York." He has proved under James' own hand and seal, that he 
always considered the transfer of New Jersey to have been made in as 
ample a manner as received by him fi'om the King ; and he has moreover 
exhibited the opinion of Sir William Jones and other eminent lawyers 
that nothing had ever been retained by the Duke excepting the nominal 
rent. 

V. It Avas asserted that Staten Island Avas adjudged to Ncav York in 
1669, but no clue can be furnished to the person, court, or authority, by 
AA'hich it Avas so adjudged. He has shown that Avhile there is no doubt 
of such a report haAring been sent over from England by Governor NicoUs, 
it Avas still an unsettled question in 1679 ; and, as such, it is reasonably 
to be supposed, was one of those intended to be covered by the provis- 



EASTERN BOUND AKY OF NEW JERSEY. ' 61 

ions of the subsequent grants. If it were not included, but on the con- 
trary, intended to be reserved, that fact would undoubtedly have been 
indicated by a change of description in the grants. 

VI. It was asserted that " all well informed persons " considered the 
waters w^est of Staten Island as part of Hudson River, although no evi- 
dence of any system of noijienclature, in conformity with such an opin- 
ion having been in practice, has been presented. He has show-n that spe- 
cific titles, having no reference to Hudson River, have uniformly been 
conferred upon those waters in documentsv and maps from the earliest 
times to the present. 

VII. It was asserted that the grantees of New York held the province 
by only a qualified title; He has shown that Charles II, considered them 
as " absolute Proprietors and Governors " — subject, of course, to the 
right of appeal to the Crown, and that so far as their rights as " proprie- 
tors" are concerned, they have time and again been confirmed, while the 
authority they possessed as "governors" never, certainly, reverted to New 
York, but is now legitimately vested in the State government of New- 
Jersey. 

VIII. It was asserted that an order of the Board of Trade in Novem- 
ber, 1697, rendered New Jersey " thenceforth in all matters of commerce^ in 
fact, as well as in law, entirely subordinate to New YorTc.^'' He has shown 
that every attempt on the part of New York to subject the commerce of 
New Jersey to its caprices most signally failed. And if any other points 
brought forward have not been touched upon, it is owing to their irrela- 
vancy or to the fact that they carried their refutation so plainly with 
them as to render their discussion unnecessary. 

In conclusion the writer would remark, that he is pleased to find the 
fairness and sound ideas of the Commissioners of New Jersey of 1769, 
recognized, even at this late day. It is to be regretted that their views 
were not endorsed at that time as they now are by the Gazette's corres- 
pondent. Meeting wnth his approval, as they seem to do, his attention 
is solicited to the following sentences which are also extracted from their 
"Brief:" "Where a deed will admit of two constructions, the one de- 
" finite and certain, the other vague and uncertain, that which is certain 
" should be taken and the other rejected." Nothing could be more " de- 
finite and certain," for the eastern boundary of New" Jersey, than the di- 
rect line formed by the "Main Sea and Hudson's River;" nothing more 
" vague and uncertain " than the circuituous, undefined line, the adop- 
tion of which is essential to the substantiation of the claims of New 
York to Staten Island and the waters in question. 

It is to be hoped, as the gentleman exhonerates Mr. Cochrane from 
any intention, by his pajoer, " to disturb the peaceful relations of the 



62 ' EASTERN BOUNDARY OF NEW JERSEY. 

two States, as they -were settled by the inter-State Treaty of 1834," and 
disclaims any such intention on his own part, that the sincerity of his 
protestations may be evinced by a cessation of the attacks upon New Jer- 
sey, New Jersey institutions, and New Jersey writers.* W. A. W. 
NewarTc^ New Jersey^ Decembei\ 1865. 



Since the foregoing papers were placed in the hands of the printer, 
Mr. Cochrane has written a long laudatory letter to Mr. Dawson, in 
which he identifies himself with that gentleman's course and views in 
the following language : 

" I was pleased to commit to your superior means and opportunities, 
" the labor of excavating the deposits of Colonial History, and of draw- 
" ing from their recesses its dimmed documents. The fitting commen- 
"tary on your ability, is the success which has crowned it. You have 
" rescued from the obscurity of encroaching" time, the authentic docu- 
" ments of forgotten events, you have elicited from oblivion the perish- 
"ing memorials of a vanishing age; "you have exhumed the judicial 
" decrees, and disclosed the Orders in Council which affect interests and 
" guide opinions ; you have prolonged to our generation the remembrance 
" of the learning and the rectitude of a former day. Where fallacy ob- 
"truded, you baffled it; where mutilation marred, you exposed it; 
" where error usurijed, you conquered it." 

As this opinion has been laid up for coming ages in the columns of 
Mr. Dawson's own paper, it may be that, in the far-off future some 
equally brilliant disputant, when engaged in " excavating the deposits 
of Colonial History" may rescue it from '"the obscurity of encroaching 
time " and find it to be of as little value in establishing a fact, 
as the oi^iuions, decrees and Orders in Council " elicited from 
oblivion " by the gentleman so highly eulogized. Such an eulogium 
leads the writer very naturally, to attach more importance to his 
share in the controversy than he has hitherto, as he had not the 



* This reasonable hope has been responded to by several additional columns of 
matter, of still greater virulence. 



EASTERN BOTTNDARY OF NEW JERSEY. 63 

least idea that he was combating an antagonist of such extraordinary 
powers. It is certainly remarkable that he should have been able — 
"lumbered with ignorance" as IVIr. Cochrane thinks him — to sustain 
such an unequal conflict. 

Although Mr. Cochr.^ne considered the Re\dew of his paper so " im- 
potent " as to be undeserving of a reply, he yet devotes nearly two col- 
umns of the paper to animadversions upon the character of the Review 
and the course of its author, the effect of which, when they shall be 
" exhumed " from amid " the perishing memorials of a vanishing age," 
it is painful to anticipate. In the mean while, too, the dreadful penalty 
is imposed upon the writer, of having his " sardonic playfulness " — his 
" diatribes" — his " blear optics " — his vanity, "which mistook for argu- 
ment his unhappy eftbrts in the character of a lei esprit " — his " opacity 
of intellect" — his "hecatombs of massacred facts " — his "licentious in- 
timacy with maps " — and the fact that he is as ignorant " as the exegen- 
cies of his reputation require him to be" (very lucid that), with other 
remarkable peculiarities and heinous offences which were exhibited in 
the Review — all, perpetuated in that depository of " authentic documents 
of forgotten events " — the Yonkers Gazette ! It is a difficult matter to 
discuss seriously, what Mr. Cochrane considers of "great pith and mo- 
ment," under such circumstances. A few remarks must suffice. 

He feels particularly outraged hj the writer's remarking that, the 
terms of the agreement of 1833-4 would be found " to have l)een framed 
" in a spirit of anxious solicitude to jjut an end forever to the disputes 
" between the two States, the concessions being for the most part, made 
" by New Jersey; and it is hoped that, neither by word nor deed, may 
" the good understanding then amved at be disturbed " — and he thus 
vents his indignation — 

" Framed in a spirit of anxious solicitude to put an end forever to the 
" disputes between the two States !" Then why does New Jersey, now 
" lay claim to the ship channel of New York ? 

" The concessions being for the most part made by New Jersey ! " If 
"so, why does New Jersey now lay claim to the ship channel of New 
"York? 

" And it is to be hoped that by neither word nor deed, may the good 
"understanding then arrived at be disturbed!" Then why does New 
"Jersey iiow lay claim to the ship channel of New York ? 

Now, the simple answer to this reiterated question is that. New Jersey 
asks for nothing, lays claim to nothing, desires nothing which is not hers 
according to "the good understanding i/^eft arrived at." She conceives 
that an adherence to Tier engagements, and a like adherence on the part 
of New York to hers, is the best course to prevent that understanding 



64 



EASTERN BOIWDARY OF NEW JERSEY. 



from being "disturbed," or the revival of "disputes between the two 
States ;" and she believes, moreover, in leaving it to the Courts to act upon 
tJte questions that may arise imcler that agreement according to the merits of 
the respective cases, wmffected ly outside pressure, or ex parte p>remitations of 
side issues lefore Historical Societies or otherioise. 

Mr. Cochrane quotes from his paper the following paragraph—" The 
" State of New Jersey, contending that the Main Sea flows only without 
" Sandy Hook, asserts, by an extension thereto of the central dividing 
" line, the right to the Southerly one-half of all the Lower Bay of New 
" York, inclusive of a substantive section of the ship channel to the har- 
"bor of New York," and then adds, " This assertion, couched injudicial 
" process, reposes icithin the Federal Courts, encouraged and supported ly 
''New Jersey, the aggressors, and resisted by New York, simply in self- 
" defense." 

Has the gentleman no confidence in the ability ajid disposition of the 
Federal Courts to consider calmly and decide justly the questions refer- 
red to their arbitrament ? or does New York now, as we have seen she 
did in other years, call in question the authority of the Court of last re- 
sort, to take cognizance of cases involving the " sovereignty and juris- 
diction " of the States of the Union ?* New Jersey, strong in her con- 
victions, "reposes" her trust in the Federal Courts, and will abide by 
their decisions. The writer, however, is unwilling to subject himself to 
any further defamatory accusations, harmless though they may be, by 
presenting any additional statements or arguments to be misrepresented 
by Mr. Cochrane ; and therefore avails himself of the following extracts 
from a charge by Judge Shipman in the United States Circuit Court, on 
the 3d February, 1864, in the case of " Whitman vs. Thompson :" the de- 
fendant not being a citizen of New York as one would suppose, but a 
citizen and civil oflicer of New Jersey, brought into Court ly a citizen of 
Neio Yorlc for an alleged illegal seizure of a vessel under the laws of New 
Jersey. Judge Shipman's charge may perhaps enlighten others, if not 
Mr. Cochrane himself, upon the subject of his enquiries. 

"The first question to be determined," said the Judge, " is, what arc 
the boundaries of the States of New York and New Jersey in the vicini- 
ty of the alleged trespass. The seizure took place on the waters lying 
between the south side of Staten Island and the shore of New Jersey, 
westerly of a north and south line di'awn from the west point of Coney 
Island to the point of Sandy Hook. The boundaries of these two States 
in these waters are fixed and defined by a treaty or compact entered into 
by them, through a joint commission duly appointed for that purpose. 
This compact was ratified by the Congress of the United States and ap- 

* See page 21. 



EASTERN BOUNDARY OF NEW JERSEY. 65 

proved June 28, 1834. The first article in this treaty is in these words : 
' The boundary line between the States of New York and New Jersey, 
from a point in the middle of Hudson River, opposite the point on the 
western shore thereof, in the 41st degree of north latitude, as heretofore 
ascertained and marked, to the main sea, shall be the middle of said 
river, of the Bay of New York, of the waters between Staten Island and 
New Jersey, and of Raritan.Bay to the main sea, except as hereinafter 
particularly mentioned.' The exceptions afterwards made in the treaty 
do not aflect the questions now before us, and, therefore, need not be no- 
ticed here. This article which I have read defines the entire boundary 
between the two States, fi-om the starting point in the middle of the 
Hudson River, down through all the waters separating the land of the 
States to the ' main sea.' This boundary line is declared, in simple and 
unmistakeable language, to be the middle of all those waters. It mat- 
ters not by what name they are called. The whole chain of waters from 
the starting point to the main sea is divided in the middle, and this cen- 
tral line fixes the territorial limits of the two States respectively. The 
eastern and northern limit of New Jersey, and the western and southern 
limit of New York meet and terminate at this line in the middle of 
these waters throughout its entire length to the main sea. You see at 
once, gentlemen, that the only question in dispute between the parties in 
this part of the case is as to the eastern or lower tenninus of this line. 
It is agreed that it terminates at the 'main sea,' and the solution of the 
question dei^ends ujDon the intei-pretation to be given to these two words. 
The duty of determining the meaning ot these two words has been sub- 
mitted to the court by the counsel on both sides, as a question of law for 
the court to determine. I therefore charge yoxt, gentlemen, that tJie words 
'■main sea,'' as used in the treaty are synonymous with '■ocenn,'' and therefore 
that iy the te'. 'as of the compact, these States, have concurred, toith the assent of 
the United States, in fixing their respective houndaries at the middle of the 
lay or waters between Staten Island and the New Jersey shore as far East as 
Sandy Hool', wJiere the lay terminates in the main sea or ocean. This is 
the natural and rational construction of this treaty when applied to the 
subject matter to which it relates. It is hardly to le supposed that these 
enlightened States, while entering into a formal and solemn treaty in or- 
der to fix. tlieir respiective loumlaries, should leave a consideralle and im- 
portant 2)ortion of them wholly uiulefined. The construction insisted on 
by the plaintiff's counsel is that the words 'main sea' are to be under- 
stood as referring to the waters outside of or beyond what, is called in 
the books, the fauces terrae, that is, the jaws of the land where so near 
each other that persons can be clearly distinguished with the naked eye 
from one shore to the other. But such an interpretation tcoidd le incon- 
sistent ioith the language of the treaty itself It is conceded that the 
most eastern points on the respective shores, where this test of distin- 
guishing persons clearly from one to the other could be applied, cannot 
be further east than Prince's Bay lights and Mattavan Creek ; and yet 
the boundary line designated in the treaty extends east of a line drawn 
from shore to shore at these points, for it speaks, in conferring exclusive 
9 



66 EASTERN BOUKDAUY OF NEW JERSEY. 

jurisdiction upon New Jersey over the west end of the bay, of ' that part 
of Raritan Bay Ij'ing west of a line drawn from the light-house at Prin- 
ce's Bay to the mouth of Mattavan Creek.' The treaty itself thus recog- 
nizes Raritan Bay as extending east of this line, and yet it divides the 
waters of this entire bay to the main sea. It is clear, therefore, that as 
the treaty extends the boundary line east through Raritan Bay beyond 
the fauces terrae, it could not have regarded the latter as fixing the place 
where the bay ends, and the main sea begins.* There is nothing in the 
configuration of the bay itself that suggests its terminus short of the 
main ocean, or at least short of the main ship channel which passes on 
the east side of Staten Island, southerly round the Southwest Spit, and 
easterly by Sandy Hook Point. There is no descrij^tion of the bay in 
the treaty or in the evidence, which suggests a line «vvest of this where the 
bay ends and the main sea begins. No one would attempt, ujion the 
evidence before the court, to draw a line from 'Staten Island to the New 
Jersey shore, and say the waters west of such a line are Raritan Bay, and 
east of the same the " main sea." The descriptive terms " Raritan Bay" 
and " main sea " are evidently used in this treaty as designating two dis- 
tinct bodies of water, and as the fauces terrae are disregarded by the 
Avhole tenor of this j^art of the instrument, when read in the light of the 
facts touching the width of the bay, the conclusion is irresistible that the 
term " Raritan Bay " refers to the hody of icater emhosomed within tlis shwes 
of the two States, aud that of the " main sea " to the ocean lying outside. The 
reason for extending the boundary line as far east as the great shijj chan- 
nel which passes southerly on the east of Staten Island, and out to sea 
by Sandy Hook Point, would seem to be as numerous and cogent as 
those for defining it in the other parts of these waters. Such a division 
was entirely consistent with the dignity of these States, and of the Uni- 
ted States, and within the power of the contracting parties. The free- 
dom of navigation is carefully i)reserved over all these waters. For that 
purpose they are all free, and neither New York nor New Jersey has any 
exclusive right therein. The latter States have simply, and, as I think, 
with great wisdo77i, fixed a line which shall mark their territorial bound- 
aries, and the limits of their resj)ectivejurisdictions." 

If therefore, " the law allows it, and the Court awards it," why sliould 
not New Jersey both claim and enjoy that which is hers ?" 

It gives the writer pleasure to quote, in conclusion, Mr. Cochrane's 
closing remarks in the letter referred to. In any other connection, they 
might be construed into a rebuke of the language indulged in by Mr. 
Dawson, but following immediately, as they do, the panegyric upon that 
gentleman, it is not to be presumed that such was their aim. It is to be 

* It will be observed that the CourJO on beyond the fauces ierrlce, such must ahvaj's 

the part of New York took very different have been the case. What becomes then 

grounds in the case before Judge Shipman, of the arguments based upon the assump. 

from those taken by Mr. Cochrane and Mr. tion that all the waters within Sandy Hook 

DawBon. If the "main sea" noio, is all are waters of Hudson River? 



EASTERN BOUNDARY OP NEW JERSEY. 67 

regretted that the same respect for New Jersey was not before expressed. 
The paragraph is as follows : 

" New York and New Jersey, when yet two hundred years have pass- 
ed, as near two hundred years have gone, of mutual discord and contest, 
will survive then, as now, prosperous, great and free — respected by all, 
respecting each other. Then, when the actors in this passing scene shall 
have expended their brief breath, and their life lie summed with them 
that sleep, their petty passions and their joys, their little griefs and their 
hopes, will long have descended into the imiversal tomb ! But still 
mighty and powerful will continue New York and New Jersey — mother 
and daughter — enduring, and as durable as the waters which divide 
them." ^ ^ W. A. W. 

Neavark, March, 1860. 



The Following is the Act of Congress confiniiing the agreement be- 
tween New York and New Jersey in 1833. 

An ACT giving the Consent of Congress to an agreement or compact entered into be- 
tween the State of New Yorli and the State of New Jersey, respecting the territorial 
limits and jurisdiction of said States.— (CAo/;. 126, iaws passed at the ^M Congress.) 

Whereas Commissioners duly appointed on the part of the State of 
New York, and Commissioners duly apj^ointed on the part of the State 
of New Jersey, for the pur^Dose of agreeing upon and settling the juris- 
diction and territorial limits of the two States, have executed certain ar- 
ticles, which are contained in the words following, viz. : 

Agreement made and entered into by and between Benjamin F. But- 
ler, Peter Augustus Jay and Henry Seymour, Commissioners duly ap- 
pointed on the part and behalf of the State of New York, in pursuance 
of an act of the Legislature of the said State, entitled " An act concern- 
ing the territorial limits and jurisdiction of the State of New York and 
the State of New Jersey" passed January 18th, 1833, of the one part; 
and Theodore Frelinghuysen and James Parker and Lucius Q. C. Elmer, 
Commissioners duly appointed on the part and behalf of the State of 
New Jersey, in pursuance of an act of the Legislature of the said State, 
entitled "An act for the settlement of the territorial limits and jurisdic- 
tion between the^ States of New Jersey and New York" passed February 
6th, 1833, of the 'other part. 

Article first. The boundary line between the two States of New 
York and New Jersey, from a point in the middle of the Hudson River, 
opposite the point on the west shore thereof in the forty-first degree of 



bo EASTERN BOUNDARY OF NEW JERSEY. 

north latitude as lieretofore ascertained and marked, to the main sea, 
shall be the middle of the said river, of the Bay of New York, of the 
waters between Staten Island and New Jersey, and of Raritan Bay, to 
the main sea ; except as hereinafter otherwise particularly mentioned. 

Article second. The State of New York shall retain its present jur- 
isdiction of and over Bedlow's and Ellis's islands ; and shall also retain 
exclusive jurisdiction of and over the other islands lying in the waters 
above mentioned and now under the jurisdiction of that State. 

Arricle third. The State of New York shall have and enjoy exclu- 
sive jurisdiction of and over all the waters of the bay of New York; 
and of and over all the waters of Hudson river lying west of Manhattan 
Island and to the south of the mouth of Spuytenduyvel creek ; and ot 
and over the lands covered by the said waters to the low water mark on 
the westerly or New Jersey side thereof; subject to the following rights 
of property and of jurisdiction of the State of New Jersey, that is to 
say. 

1. The State of New Jersey shall have the exclusive right of proper- 
ty in and to the land under water lying west of the middle of the bay 
of New York, and west of the middle of that part of the Hudson river 
which lies between Manhattan Island and New Jersey. 

2. The State of New Jersey shall have the exclusive jurisdiction of 
and over the wharves, docks and imj^rovements, made and to be made 
on the shore of the said State ; and of and over all vessels aground on 
said shore, or fastened to any such wharf or dock ; except that the said 
vessels shall be subject to the quarantine or health laws, and laws in re- 
lation to passengers, of the State of New York, which now exist or 
which may hereafter be passed. 

3. The State of New Jersey shall have the exclusive right of I'egula- 
ting the fisheries on the westerly side of the middle of the said waters, 
Provided, That the navigation be not obstructed or hindered. 

Article fourth. The State of New York shall have exclusive juris- 
diction of and over the waters of the Kill Van Kull between Staten Isl- 
and and New Jersey to the westernmost end of Shooter's Island in re- 
spect to such quarantine laws and laws relating to i^assengers, as now 
exist or may hereafter be passed under the authority of that State, and 
for executing the same ; and the said State shall also have exclusive ju- 
risdiction, for the like purposes of and over the waters of the sound from 
the westernmost end of Shooter's Island to Woodbridge creek, as to all 
vessels bound to any port in the said State of New York. 

Article fifth. The State of New Jersey shall have and enjoy ex- 
clusive jurisdiction of and over all the waters of the sound between Sta- 
ten Island and New Jersey lying south of Woodbridge creek, and of and 
over all the waters of Raritan bay lying westward of a line drawn from 
the light-house at Prince's bay to the mouth of Mattavan creek ; subject 
to the following rights of property and of jurisdiction of the State of 
New York, that is to say : 

1. The State of New York shall have the exclusive right of jDroper- 



EASTERN BOUNDARY OF NEW JERSEY. 69 

ty in and to tlie land under water lying between the middle of the said 
waters and Staten Island. 

2. The State of New York shall have the exclusive jurisdiction of and 
over the wharves, docks and improvements made and to be made and to 
be made on the shore of Staten Island, and of and over all vessels aground 
on said shore, or fastened to any such wharf or dock ; except that the 
said vessels shall be subjeet to the quarantine or health laws, and laws in 
relation to passengers of the State of New Jersey, which now exist or 
which may hereafter be passed. 

3. The State of New York shall have the exclusive right of regulat- 
ing the fisheries between the shore of Staten Island and the middle of 
the said waters ; Provided, That the navigation of the said waters be not 
obstructed or hindered. 

Article sixth. Criminal process under the authority of the State 
of New Jersey against any person accused of an offence committed with- 
in that State ; or committed on board of any vessel being under the ex- 
clusive jurisdiction of that State as aforesaid : or committed against the 
regulations made or to be made by that State in relation to the fisheries 
mentioned in the third article ; and also civil process issued under the 
authority of the State of New Jersey against any person domiciled in 
that State, or against property taken out of that State to evade the laws 
thereof; may be served upon any of the said waters within the exclu- 
sive jurisdiction of the State of New York unless such person or proper- 
ty shall be on board a vessel aground ui)on, or fastened to, the shore of 
the State of New York, or fastened to a wharf adjoining thereto, or un- 
less such person shall be under arrest, or such property shall be under 
seizure, by virtue of process or authority of the State of New York. 

Article seventh. Criminal process issued under the authority of the 
State of New York against any person accused of an offence committed 
within that State ; or committed on board of any vessel being under the 
exclusive jurisdiction of that State as aforesaid, or committed against 
the regulations made or to be made by that State in relation to the fish- 
eries mentioned in the fifth article; and also civil process issued under 
the authority of the State of New York against any person domiciled in 
that State, or against property taken out of that State, to evade the laws 
thereof, may be served upon any of the said waters within the exclusive 
jurisdiction of the State of of New Jersey, unless such person or proper- 
ty shall be on board a vessel aground upon or fastened to the shore of the 
State of New Jersey, or fastened to a wharf adjoining thereto, or unless 
such person shall be under arrest, or such property shall be under seizure 
by virtue of process or authority of the State of New Jersey. 

Article eighth. This agreement shall become binding on the two 
States when confirmed by the Legislatures thereof, respectively, and 
when approved by the Congress of the United States. 

Done in four parts (two of which are retained by the Commissioners 
of New York to be delivered to the Governor of that State, and the oth- 
er two of which are retained by the Commissioners of New Jersey, to be 
delivered to the Governor of that State,) at the City of New York, this 



70 EASTEKN BOUNDARY OP NEW JERSEY. 

sixteenth day of September, in the j^ear of our Lord one thousand eight 
hundred and thirty-three, and of the independence of the United States 
the fifty-eighth. 

B. F. BUTLER, 
PETER AUGUSTUS JAY, 
HENRY SEYMOUR, 
THEO. FRELINGHUYSEN, 
JAMES PARKER, 
LUCIUS Q. C. ELMER. 

And whereas the said agreement has been confirmed by the Legis- 
latures of the the said States of New York and New Jersey respec- 
tively, 

Therefore 

[Sec. 1.] Be it eimcted hy the Senate and House of Representatives of the 
United States of America in Congress assembled, That the consent of the 
Congress of the United States is hereby given to the said agreement, 
and to each and every part thereof. Provided, that nothing therein con- 
tained shall be construed to imjjair or in any manner affect, any right of 
jurisdiction of the United States in and over the islands or waters which 
form the subject of the said agreement. 

Approved, June 28, 1834. 



(S 



